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BOZEMAN — A Colorado man accused of attempted homicide for his role in a 2007 shootout is asking to have the case dismissed because he alleges evidence key to his case was destroyed.

Christopher Wagner was sentenced to 60 years in state prison with no chance of parole after a jury found him guilty of attempted murder for his exchange of gunfire with Michael Peters. In August, the Montana Supreme Court overturned the conviction, saying prosecutors attacked Wagner's credibility during the trial by using against him his refusal to speak with investigators without an attorney present.

His retrial was scheduled for May 24.

Now, Wagner says the charges should be dropped.

In court motions filed last week, Wagner's attorney, Ryan McCarty, contends the father of the shooting victim tainted the crime scene before investigators arrived and destroyed evidence that could clear Wagner. His motion alleges John Peters removed a gun from Michael Peters' pickup and moved the pickup off the road despite warnings from a sheriff's deputy that he was tampering with evidence.

McCarty also asked that the testimony Wagner gave during the first trial should be excluded if the case is tried again.

"The state cannot use a defendant's previous, tainted testimony at a later trial," McCarty wrote.

Court records say Peters and Wagner had dated the same woman in the past and Wagner, who was charged with assaulting the woman in Colorado in 2005, came to Bozeman looking for Peters. Wagner testified he wanted to talk to Peters in hopes of locating the woman.

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On Jan. 17, 2007, Peters was driving away from his house when a man flagged him down, then pulled a gun on him. Peters, who believed Wagner was in town looking for him, figured the man must be Wagner and told police he shot him twice. Wagner then fired at Peters, hitting him three times. Peters fled when his gun jammed. Wagner fled and was arrested eight days later in Greybull, Wyo.

McCarty also asked that the attempted deliberate homicide charge be dismissed, saying his client had "ample opportunity to shoot Peters" after Peters' gun jammed, but he didn't.

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