SUPREME COURT, STATE OF COLORADO



SUPREME COURT, STATE OF COLORADO 9:00 a.m.

Oral Argument: Tuesday, January 23, 2007 EN BANC

Bailiff: Heather Fredricksen

06SA118 (1 HOUR)

|Petitioner-Appellee: |))))|For the Petitioner-Appellee: |

| |))))|Dudley P. Spiller |

|CITY OF FORT MORGAN, |))))|Ryley Carlock & Applewhite |

| |))))|and |

|v. |) |Eric C. Jorgensen |

| |))))| |

|Respondents-Appellants: |))))|For the Respondents-Appellants Public Utilities Commission, |

| |))))|Commissioner Gregory E. Sopkin, Commissioner Polly Page and |

|THE COLORADO PUBLIC UTILITIES COMMISSION, COMMISSIONER GREGORY E. |))))|Commissioner Carl Miller: |

|SOPKIN, COMMISSIONER POLLY PAGE, and COMMISSIONER CARL MILLER, |))))|John W. Suthers |

| |) |Attorney General |

|and | |David A. Beckett |

| | |Department of Law |

|Intervenors-Appellants: | |Business and Licensing Section |

| | | |

|KN WATTENBERG TRANSMISSION, L.L.C., LEPRINO FOODS COMPANY, and | |For the Intervenor-Appellant KN Wattenberg Transmission, LLC: |

|CARGILL MEAT SOLUTIONS CORPORATION. | |Michael L. Beatty |

| | |Michael Noone |

| | |Beatty & Wozniak, P.C. |

| | | |

| | |For the Intervenors-Appellants Cargill Meat Solutions Corporation|

| | |and Leprino Foods Company: |

| | |Leanne B. De Vos |

| | |Sherman & Howard, LLC |

| | | |

| | |For Amicus Curiae The Colorado Association of Municipal Utilities|

| | |and The Colorado Municipal League in Support of the City of Fort |

| | |Morgan: |

| | |Wm. Kelley Dude |

| | |Anderson Dude & Lebel, P.C. |

| | |and |

| | |Geoffrey T. Wilson |

| | |Colorado Municipal League |

Appeal from District Court, Morgan County, 04CV301

Docketed: April 14, 2006

At Issue: November 9, 2006

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06SA118

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ISSUE(S):

Issues for Intervenors-Appellants Cargill Meat Solutions Corporation (Formerly known as Excel Corporation) and Leprino Foods Company:

Did the Commission regularly pursue its authority, reach a just and reasonable decision, and make conclusions in accordance with the evidence when it issued a CPCN to KNW, having determined Fort Morgan’s refusal to provide substantially adequate service to meet Excel and Leprino’s business needs?

Excel and Leprino agree with and adopt the statement of other issues presented on appeal in the Opening Brief of Intervenor/Appellant KN Wattenberg Transmission, L.L.C.

Issues for Intervernor-Appellant KN Wattenberg Transmission, L.L.C.:

Did the PUC regularly pursue its jurisdictional authority when it granted a CPCN to KNW regulating its rates, services, and facilities and allowing continued firm transportation of interstate gas to two industrial customers located within the City of Fort Morgan (“City”), where KNW’s facilities had been lawfully constructed and operated, pursuant to orders of the Federal Energy Regulatory Commission (“FERC”), and where the FERC had made a conditional hand-off of regulatory oversight to the PUC pursuant to the Hinshaw Amendment of the Natural Gas Act?

When the PUC has determined that firm transportation service is a distinct and necessary service, is essential to two industrial customers, and is not being provided by a home rule municipality, does the PUC have constitutional authority to grant a CPCN authorizing that service within the municipality?

Did the PUC properly exercise its authority in making a decision to grant a CPCN to KNW by conducting proceedings to determine if firm transportation service is a standard industry offering and whether a municipal utility in a home rule city was unwilling or unable to offer that service?

Where a pipeline is constructed under valid federal authority and where no franchise was required because construction would not cross any city streets, alleys or property, can the City prevent operation of the pipeline?

Was the PUC’s decision to exercise regulation over KNW’s facilities, rates and services just and reasonable, and in accordance with the evidence?

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06SA118

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Issues for Respondents-Appellants Colorado Public Utilities Commission, Commissioner Gregory E. Sopkin, Commissioner Polly Page and Commissioner Carl Miller:

Did the PUC act within its authority set forth in article XXV of the Colorado Constitution when it awarded a CPCN authorizing a public utility to provide service to customers located in a municipality, which municipality owned and operated a municipal utility?

Whether, in the PUC’s exercise of its regulatory authority, it was correct for the PUC to invoke the doctrine of regulated monopoly to determine if the service offered by the incumbent municipal utility was substantially inadequate?

May the PUC review the tariffs of a municipal utility without running afoul of the prohibition against impermissible interference with municipal property or functions that is set forth at article V § 35 of the Colorado Constitution?

Did the district court misinterpret the Public Utilities Law in concluding that a permit was a condition precedent for KNW to be awarded a CPCN?

Oral Argument: Tuesday, January 23, 2007 10:00 a.m.

EN BANC

05SC682 (1/2 HOUR)

|Petitioner: |))))|For the Petitioner: |

| |))))|Jonathan D. Reppucci |

|TERRENCE T. HODGES, |))) |Jonathan D. Reppucci, LLC |

| |) | |

|v. | | |

| | | |

|Respondent: | |For the Respondent: |

| | |John W. Suthers |

|THE PEOPLE OF THE STATE OF COLORADO. | |Attorney General |

| | |Cheryl Canaday |

| | |Appellate Division |

| | |Criminal Appeals Unit |

Certiorari to the Colorado Court of Appeals, 03CA0018

Docketed: September 19, 2005

At Issue: December 20, 2006

ISSUE(S):

Whether the court of appeals erred in interpreting C.R.S. 21-2-101(1).

Oral Argument: Tuesday, January 23, 2007 10:30 a.m.

EN BANC

05SC519 (1 HOUR)

|Petitioner/Cross-Respondent: |))))|For the Petitioner/Cross-Respondent: |

| |))))|Christopher Silva |

|CHRISTOPHER SILVA, |))))|Pro Se |

| |))))| |

|v. |) |For the Respondent/Cross-Petitioner: |

| |))))|John W. Suthers |

|Respondent/Cross-Petitioner: |))))|Attorney General |

| |))))|Laurie A. Booras |

|THE PEOPLE OF THE STATE OF COLORADO. | |Appellate Division |

| | |Criminal Justice Section |

| | | |

| | |(Amici to participate in oral argument for Petitioner) |

| | |For Amicus Curiae Colorado State Public Defender: |

| | |Douglas K. Wilson |

| | |Colorado State Public Defender |

| | |Kathleen A. Lord |

| | |Deputy State Public Defender |

| | |Shann Jeffrey |

| | |Deputy State Public Defender |

| | | |

| | |For Amicus Curiae Colorado Criminal Defense Bar: |

| | |Kim Dvorchak |

| | |and |

| | |Michelle Lazar |

| | |and |

| | |Jonathan D. Reppucci |

Certiorari to the Colorado Court of Appeals, 04CA0661

Docketed: July 26, 2005

At Issue: November 2, 2006

ISSUE(S):

Whether Petitioner has a constitutional right to assistance of counsel in pursuit of postconviction relief, and thus effective assistance of counsel under the Due Process and Equal Protections Clauses of the Fourteenth Amendment to the United States Constitution and Art. II, section 25 of the Colorado Constitution.

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05SC519

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Whether the Colorado Court of Appeals erred in not reaching the merits of Petitioner’s other claims raised in his appeal of the denial of his application for postconviction relief under Crim.P. Rule 35(c) and not remanding those claims to the trial court to issue findings of fact and conclusions of law in accordance with Crim. P. 35(c)(3)(IV).

Whether a due process violation can arise from the simple appointment of postconviction counsel with a conflict of interest that the trial court “should have known about.”

SUPREME COURT, STATE OF COLORADO 1:30 p.m.

Oral Argument: Tuesday, January 23, 2007 EN BANC

Bailiff: Jessica Schmidt

06SA272 (1 HOUR)

|In re: |))))|For the Plaintiff: |

| |))))|Rocco A. Dodson |

|Plaintiff: |))))|Dodson & Associates, P.C. |

| |))))| |

|J.A. WALKER CO, INC., a Colorado corporation, |))))|For the Defendants Urban Market Development, LLC; 450 |

| |))))|Seventeenth, LLC; Regent Terrace, LLC; 450 Company, LLC; |

|v. |))))|Christine Owen and Stephen Owen: |

| |))))|Chad M. McShane |

|Defendants: |))))|Robinson, Waters & O’Dorisio, P.C. |

| |) | |

|450 SEVENTEENTH, LLC, a Colorado limited liability company; 450 | |For the Defendant Ready Mixed Concrete Company: |

|COMPANY, LLC, a Colorado limited liability company; REGENT TERRACE, | |Mark D. Gruskin |

|LLC, a Colorado limited liability company; CAMBRIA CORPORATION, a | |Jeffrey R. Pretty |

|Colorado corporation; 450 AMIGAS UNIDAS, LLC, a Colorado limited | |Senn Visciano Kirschenbaum, P.C. |

|liability company; EXCEL METELS, INC., a Colorado corporation; READY | | |

|MIXED CONCRETE COMPANY, a Colorado corporation; REDD IRON, INC., a | |For the Defendant Brundage-Bone Concrete Pumping Colorado, Inc.: |

|Colorado Corporation; URBAN MARKET DEVELOPMENT, LLC, a Colorado | |Carrie A. Rodgers |

|corporation; GUARANTY BANK AND TRUST COMPANY, a Colorado banking | |Angela D. DeVine |

|corporation; L & W SUPPLY CORPORATION, d/b/a BUILDING SPECIALTIES, | |Moye White, LLP |

|INC.; CITY AND COUNTY OF DENVER, a municipal corporation of the State| | |

|of Colorado; THE PUBLIC TRUSTEE OF THE CITY AND COUNTY OF DENVER; | |For the Defendant Cambria Corporation: |

|CHRISTINE H. OWEN, an individual; and STEPHEN L. OWEN, an individual,| |Robert R. Miller |

|BRUNDAGE-BONE CONCRETE PUMPING COLORADO INC., a Colorado corporation.| |Stettner, Miller and Cohn, P.C. |

| | | |

| | |For the Defendant Redd Iron Inc.: |

| | |Joseph A. Murr |

| | |Susan A. Kraemer |

| | |Bloom Murr & Accomazzo, P.C. |

Original Proceeding, District Court, City & County of Denver, 06CV1765

Docketed: August 29, 2006

At Issue: October 23, 2006

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06SA272

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ISSUE(S):

Whether the trial court committed an abuse of discretion and abdicated its jurisdiction by ordering Walker and Cambria to arbitrate their dispute, when the uncontradicted evidence before the court was that the agreement to arbitrate was fraudulently induced.

Whether the trial court committed an abuse of discretion and abdicated its jurisdiction by ordering Walker and Cambria to arbitrate their dispute when only 450 filed the Motion to Compel Arbitration, and Walker had no contract with 450?

Oral Argument: Tuesday, January 23, 2007 2:30 p.m.

EN BANC

06SA240 (1 HOUR)

|In re: |))))|For the Plaintiffs: |

| |))))|Chris Ingold |

|Plaintiffs: |))))|Irwin & Boesen, P.C. |

| |)) | |

|CHRIS and CINDY INGOLD, | | |

| | | |

|v. | | |

| | | |

|Defendants: | |For the Defendants: |

| | |Jon F. Sands |

|AIMCO/BLUFFS, L.L.C. APARTMENTS d/b/a BOULDER CREEK APARTMENTS, AIMCO| |Brad Ramming |

|PROPERTIES, L.P. and JAMES R. MACIAS, and JOHN DOES 1-5. | |Fisher, Sweetbaum, Levin & Sands, P.C. |

Original Proceeding, District Court, Boulder County, 04CV1225

Docketed: August 1, 2006

At Issue: November 20, 2006

ISSUE(S):

Whether the court had to determine the validity of the alleged underlying contract before compelling arbitration, since no portion of the Original Uniform Act gives powers to the arbitrator to determine the enforceability of any provision of an alleged contract.

Whether the nonwaiver provision of the Security Deposit Act barred the arbitration ordered by the court.

Whether the court should have found that the “Intertwining Doctrine” barred arbitration.

SUPREME COURT, STATE OF COLORADO 9:00 a.m.

Oral Argument: Wednesday, January 24, 2007 EN BANC

Bailiff: Clare Salmo

06SA199 (1 HOUR)

|CONCERNING THE APPLICATION FOR WATER RIGHTS OF JOHN AND BEVERLY |))))|For the Applicants-Appellants: |

|TONKO, IN FREMONT COUNTY, COLORADO |))))|Linda McMillan |

| |))))|Shaw & Quigg, P.C. |

|Applicants-Appellants: |))))| |

| |))) | |

|JOHNNY F. TONKO and DONNA TONKO, | | |

| | | |

|v. | | |

| | | |

|Opposers-Appellees: | | |

| | | |

|CHARLES MALLOW, CITY OF FLORENCE, TOWN OF COAL CREEK, TOWN OF | |For the Opposers-Appellees: |

|WILLIAMSBURG, TOWN OF ROCKVALE, PHILIP KESSLER, NAOMI KESSLER, and | |Julianne M. Woldridge |

|STEVEN J. WITTE, Division Engineer, Water Division 2. | |MacDougall, Woldridge & Worley, P.C. |

Appeal from the District Court, Water Division 2, 01CW95

Docketed: June 19, 2006

At Issue: December 4, 2006

ISSUE(S):

Whether the court erred in finding that applicants were collaterally estopped from presenting evidence regarding the historic use of the subject water rights.

Whether the Water Court erred by granting opposer’s Motion for Summary Judgment.

Whether the water court erred in finding that applicants’ water rights were not historically used for decreed purposes when there was no place of use specified in the decree.

Whether a practical effect of the water court’s ruling is that a District Court has now, in essence, determined the existence of a water right creating a precedent for District Courts to make such rulings in the future.

Whether the water court erred in finding that Applicant-Appellant’s claim lacked substantial factual support, legal support and justification and thus erred in awarding attorney’s fees.

Oral Argument: Wednesday, January 24, 2007 10:00 a.m.

EN BANC

06SC71 (1/2 HOUR)

|Petitioner: |))))|For the Petitioner: |

| |))))|John W. Suthers |

|THE PEOPLE OF THE STATE OF COLORADO, |))))|Attorney General |

| |) |Jennifer M. Smith |

|v. | |Assistant Attorney General |

| | |Appellate Division |

|Respondent: | |Criminal Justice Section |

| | | |

|JUAN R. RAMIREZ. | |For the Respondent: |

| | |Douglas K. Wilson |

| | |Colorado State Public Defender |

| | |Alan Kratz |

| | |Deputy State Public Defender |

Certiorari to the Colorado Court of Appeals, 03CA1600

Docketed: February 24, 2006

At Issue: December 26, 2006

ISSUE(S):

Whether the expert testimony of a certified pediatric nurse practitioner should have been admitted at trial where the expert testified her finding was “suspicious” and acknowledged she had not reached a conclusion to a reasonable degree of medical certainty.

Whether the court of appeal’s decision to require the trial court to change the jury instruction on sexual assault on remand was incorrect in light of this Court’s decision in People v. Vigil, 127P.3d 916, 04SC352 (Colo. Jan. 23, 2006).

SUPREME COURT, STATE OF COLORADO 9:00 a.m.

Oral Argument: Thursday, January 25, 2007 EN BANC

Bailiff: Toni Wehman

02SA365 (2 HOURS)

|Plaintiff: |))))|For the Plaintiff: |

| |))))|Carol A. Chambers |

|THE PEOPLE OF THE STATE OF COLORADO, |))))|John Topolnicki |

| |))))|Paul Wolff |

|v. |) |Office the District Attorney |

| |))))|18th Judicial District |

| |))))|and |

|Defendant: |))))|Susan J. Trout |

| |))))|Special Deputy District Attorney and First Assistant Attorney |

|EDWARD MONTOUR, JR. |))))|General |

| |))))|Office of the Attorney General |

| |))))| |

| |))))|For the Defendant: |

| |))))|Judy L. Lucero |

| |) |and |

| | |Esteban A. Martinez |

| | |Martinez Law, LLC |

| | | |

| | |For Amicus Curiae Colorado District Attorney’s Council: |

| | |David J. Thomas |

| | |Colorado District Attorney’s Council |

| | |and |

| | |Donna Skinner Reed |

| | |Chief Appellate Deputy District Attorney |

| | |1st Judicial District |

| | | |

| | |For Amicus Curiae Colorado Criminal Defense Bar (granted |

| | |permission to argue on January 10, 2007): |

| | |David Lane |

| | |Killmer, Lane & Newman, LLP |

| | | |

| | |For Amicus Curiae Colorado State Public Defender: |

| | |Douglas K. Wilson |

| | |State Public Defender |

| | |Jason C. Middleton |

| | |Deputy State Public Defender |

| | | |

| | | |

| | | |

| | |cont’d on next page |

| | |cont’d from previous page |

| | | |

| | |For Amicus Curiae Office of the Attorney General (joined in brief|

| | |filed by District Attorney): |

| | |John W. Suthers |

| | |Attorney General |

| | |Paul E. Koehler |

| | |Assistant Attorney General |

| | |Appellate Division |

| | |Criminal Justice Section |

Appeal from District Court, Douglas County, 02CR782

Docketed: December 23, 2002

At Issue: December 29, 2006

ISSUE(S):

Independent Review Issues:

Whether the record of the trial court proceedings and sentencing hearing is sufficient to support the death sentence under Colorado law or the Eighth and Fourteenth Amendments to the United States Constitution?

Whether Colorado’s death penalty scheme, which authorizes a death sentence without adversarial testing and permits a capital defendant to, in effect, direct a sentence of death, violates Furman v. Georgia, 408 U.S. 238 (1972), and the Eighth and Fourteenth Amendments to the United States Constitution?

Whether the trial court violated Colorado law and federal due process in failing to reach the death verdict in the same manner a jury is required to determine its verdict, as required by Section 18-1.3-1201(2.5).

Whether Sections 18-1.3-401(5) and 18-1.3-1201 (6), (7) and (8) violate due process, equal protection, the right to a jury trial under Ring v. Arizona, 536 U.S. 584 (2002), and the Eighth Amendment to the United States Constitution and/or the Colorado Constitution by providing disparate relief for capital defendants whose death sentences are vacated or reversed on appeal?

Whether Colorado’s death penalty statute creates a substantial risk race will enter into capital prosecution, permitting the death penalty to be disproportionately imposed on minorities convicted of killing white persons in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Article II, Sections 16 and 25 of the Colorado Constitution?

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02SA365

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Whether Colorado statutes governing the execution of a human being are so vague they violate due process and give rise to the exercise of unfettered discretion by prison officials, resulting in cruel and unusual punishment, in violation of the Eighth and Fourteenth Amendments, and like provisions under the Colorado Constitution. Colorado Const. Art. II, Sec. 20?

Whether the unitary review scheme for the review of death sentences violates due process, equal protection and the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and/or the Colorado Constitution?

Whether the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution prohibit the State of Colorado from sentencing any person to death absent grand jury indictment?

Direct Appeal Issues:

Whether section 18-1.3-1201(1)(a), C.R.S., which mandates judicial determination of death-eligibility of a capital defendant who forgoes a jury trial or pleads guilty, violates the right to jury determination as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Ring v. Arizona, 536 U.S. 584 (2002)?

Whether judicial determination of death-eligibility and selection of penalty created by Section 18-1.3-1201(1)(a), C.R.S.- which forces a capital defendant who forgoes a jury trial or pleads guilty to surrender the right to jury sentencing- violates due process, equal protection and the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and equivalent provisions of the Colorado Constitution?

Whether section 18-1.3-1201(2)(a) C.R.S. violates the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and the Colorado Constitution’s prohibition against cruel and unusual punishment by requiring the sentencing authority to consider mitigation as part of the death-eligibility determination?

SUPREME COURT, STATE OF COLORADO 1:30 p.m.

Oral Argument: Thursday, January 25, 2007 EN BANC

Bailiff: Paul Kyed

05SC849 (1 HOUR)

|Petitioner: |))))|For the Petitioner: |

| |))))|Christopher Lane |

|THE DENVER FOUNDATION, |))))|Bridget K. Sullivan |

| |))))|Sherman & Howard, LLC |

|v. | | |

| | |For the Respondent: |

|Respondent: | |Marc D. Flink |

| | |Casie D. Collignon |

|WELLS FARGO BANK, N.A. | | |

| | |For Amici Curiae Colorado Bankers Association; JPMorgan Chase |

| | |Bank, N.A.; Valley Bank and Trust; Home State Bank; and First |

| | |National Bank: |

| | |Ted R. Sikora, II |

| | |Victoria A. Johnson |

| | |Davis Graham & Stubbs, LLP |

Certiorari to the Colorado Court of Appeals, 04CA1403

Docketed: December 2, 2005

At Issue: December 11, 2006

ISSUE(S):

Whether the prohibition in the Sterne-Elder Trust on invasion of principal precludes a transfer of the principal of that component Trust of the Foundation from Wells Fargo to the Foundation’s nonprofit corporation to be held as a part of the Foundation’s permanent endowment.

Whether the court of appeals committed error when it imposed its own construction of the Foundation’s Declaration without showing that the Foundation’s construction was in bad faith or an abuse of discretion.

Whether the Sterne-Elder Trust gives The Denver Foundation power to modify a restriction on distribution that is inconsistent with the charitable needs of the community. Is the Foundation’s exercise of that power limited to circumstances that the restriction would make it impossible, illegal or impractical to fulfill the purposes of the Trust.

Whether the transfer of the principal of the Sterne-Elder Trust to the Foundation’s nonprofit corporation as a permanent endowment would cause a merger of all legal and equitable interests in the Trust that would terminate the Trust.

Whether it was proper for the Probate Court to consider evidence on the evolution of the Foundation and on prior Wells Fargo transfers of Foundation component trusts to the corporate entity.

Oral Argument: Thursday, January 25, 2007 2:30 p.m.

EN BANC

05SC763 (1/2 HOUR)

|Petitioner: |))))|For the Petitioner: |

| |))))|Douglas K. Wilson |

|ADALILIA ARTEAGA-LANSAW, |))))|Colorado State Public Defender |

| |) |Shann Jeffery |

|v. | |Deputy State Public Defender |

| | | |

|Respondent: | |For the Respondent: |

| | |John W. Suthers |

|THE PEOPLE OF THE STATE OF COLORADO. | |Attorney General |

| | |Jennifer M. Smith |

| | |Assistant Attorney General |

| | |Appellate Division |

| | |Criminal Justice Section |

Certiorari to the Colorado Court of Appeals, 03CA0881

Docketed: December 19, 2005

At Issue: November 2, 2006

ISSUE(S):

Whether the admission of victim hearsay statements to police requires reversal.

Oral Argument: Thursday, January 25, 2007 3:00 p.m.

EN BANC

05SC916 (1/2 HOUR)

|Petitioner: |))))|For the Petitioner: |

| |))))|John W. Suthers |

|THE PEOPLE OF THE STATE OF COLORADO, |))) |Attorney General |

| | |Roger G. Billotte |

|v. | |Assistant Attorney General |

| | |Appellate Division |

|Respondent: | |Criminal Justice Section |

| | | |

|CHARITY LEHNERT. | |For the Respondent: |

| | |Jonathan D. Reppucci |

| | |Jonathan D. Reppucci, LLC |

Certiorari to the Colorado Court of Appeals, 02CA2186

Docketed: December 30, 2005

At Issue: December 11, 2006

ISSUE(S):

Whether the evidence was insufficient to show that the defendant took a substantial step toward murder, as required for conviction for attempted first-degree murder.

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