Details Released

Statements, Witnesses Describe Summer Shooting Death

David F. Waggoner in Chautauqua County Court in Mayville. P-J photo by Jordan W. Patterson

MAYVILLE — Despite never uttering the words “self defense,” Chautauqua County Public Defender Ned Barone made it clear during the first day of trial that his client David Waggoner believes he was justified when he shot and killed a Jamestown man last year.

Opening statements were made Wednesday in the second-degree murder trial of Waggoner in Chautauqua County Court. Waggoner, 54, is accused of shooting William J. Michishima, 30, in Jamestown last summer. Michishima was taken to an Erie, Pa., hospital where he died the following day.

Chautauqua County District Attorney Patrick Swanson is handling the prosecution of the case, which is taking place in front of County Court Judge David Foley. Swanson made his opening statements, detailing the July 24, 2018, shooting on Livingston Avenue in Jamestown.

Barone also made opening statements Wednesday. However, Swanson objected three times while Barone spoke on statements the public defender made. Swanson objected to the public defender’s opening statement less than 15 seconds in regards to the relevancy of claims Barone was making.

In Swanson’s opening statement, he introduced the events that occurred the day Michishima was shot. He briefly mentioned several accounts from witnesses that will likely speak during trial. Swanson alluded to witnesses who will say Waggoner allegedly shot Michishima during a scuffle.

Citing two witnesses’ accounts from Daryl Ferarro and Tod Ness who were traveling in a vehicle when they allegedly witnessed the events, Swanson said:

“(Waggoner and Michishima) appeared to engage in a brief scuffle. As one of the men stumbled, the other man, the long-haired man, reached into his pants with his right hand, pulled out a gun, raised it, aimed it and fired one shot into the top of the head of the other man.”

Ferarro called 911 from his vehicle.

Witness testimony from Danielle Newark, the Chautauqua County emergency dispatcher, was provided during court Wednesday. During her time on the stand, the prosecution entered the 911 call into evidence. That call was played for the jury.

“They were punching each other and then he pulled out a gun and blasted him,” Ferarro can be heard saying on the audio of the call.

Swanson said Waggoner had his girlfriend, Kimberly Johnston, hid the weapon in question and another firearm. The weapons were later revealed to the Jamestown Police Department.

According to Swanson, Waggoner returned to the scene of the shooting. Two separate witnesses who didn’t observe the shooting were examining Michishima’s body when Waggoner returned. One of the witnesses who saw the shooting yelled from several houses down the street, “Someone’s got a gun,'” Swanson said, to which Waggoner replied “There’s no (expletive) gun. There’s no (expletive) gun.”

According to Swanson, Waggoner told David Winner, who had arrived at the scene, that he had pushed Michishima who then hit his head. Also, Waggoner removed a piece of paper that was still in Michishima’s hand. The piece of paper was later revealed to be the title of a motorcycle.

Swanson’s and Barone’s statements appeared to both indicate an altercation preceded Waggoner shooting Michishima. Also, both opening statements indicated that the motorcycle parked on the side of the road near the scene on the day of the shooting was a key factor in the dispute.

Barone’s statement did not deny that Waggoner shot and killed Michishima, but continuously described the actions as an act of defense, and implicated Michishima as the aggressor. He used the term “life and death” situation when describing the events of that day. Barone also referred to the defense as “the government” numerous times while detailing Waggoner’s indictment.

“David Waggoner was put in a position where he had no other choice but to fight for his loved ones and himself,” Barone said to the jury.

Barone provided details indicating Michishima had allegedly stolen Waggoner’s motorcycle and attempted to break into Waggoner’s home the morning of the shooting.

On the morning of July 24, Barone said Waggoner’s grandson alerted him of Michishima’s presence outside when a confrontation began. The public defender noted that Waggoner was unarmed during the initial interaction. Barone repeated the the event took place in front of Waggoner’s home.

A brief recess was held between the prosecution, defense and Foley. The judge indicated the recess would be used to review case law involving precedents for trials where the defense is arguing a particular crime’s justification and the evidence needed to prove such a defense. Foley also said he was concerned about “character assassination” of Michishima and wanted to ensure that any history of violence, psychiatric care or drug abuse Barone cited in his opening statement was known by Waggoner prior to the shooting.

Upon return from recess, Foley addressed concerns about the defense attempting to prove an initial aggressor and using a propensity for violence throughout the trial. Foley, reading from a previous case, said if it can be proven Waggoner was not the initial aggressor, it still must be proven that the use of lethal force was reasonable. As for using an individual’s propensity for violence or a history of psychiatric care and drug abuse, Foley said the defense must show that Waggoner had previous knowledge of such characteristics in order for them to be admissible.

Later in the trial, the prosecution called Dr. Eric Vey, a forensic pathologist who performed Michishima’s autopsy. During Vey’s testimony, it was revealed Michishima had methamphetamine in his system. However, Vey said it was impossible to know how much of it was the active version and nonactive version.

During cross-examination of the prosecution’s witness, Barone asked Vey about potential gun residue left on Michishima. The public defender said Michishima was wearing a hat when he was shot. Vey said the hat could have potentially absorbed any of the gun residue that would have been left from a close shot.

In total, the prosecution called four witnesses to the stand to testify Wednesday.

Foley ordered an adjournment at 4 p.m., citing a witness that was expected to take an extended amount of time on the stand. The murder trial will resume at 9:30 a.m. today.

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