Public Defender Says Delays Are Intentional

Waggoner Trial Day 7

MAYVILLE — Chautauqua County Public Defender Ned Barone said the continued delays in the ongoing second-degree murder trial of David F. Waggoner are intentional by the prosecution and “clearly calculated to undermine the defense.”

Waggoner, 54, is accused of shooting 30-year-old Michishima in front of 114 Livingston Ave. in Jamestown on July 24, 2018. 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 in front of Judge David Foley. Waggoner is represented by Barone, who has maintained that Waggoner’s actions were in response to Michishima’s aggression.

The prosecution rested its case on March 19. The defense began calling its witnesses Thursday.

On Friday, more delays ensued that even prompted Foley to thank the jury for its patience and apologize for the many recesses. Much of the stoppages within the trial are due objections, recesses to review evidence and case law and offers of proof regarding witness testimony.

When the defense goes through an offer of proof, a given witness must testify to the courtroom without the jury present to prove what will be included in the testimony. Foley then rules on what portions of the testimony will be allowed to be spoken in front of the jury, if any at all. One witness, Robert Clark was not allowed to give testimony and another deputy marshal from the Seneca Nation Marshal’s Office was turned away as well. A third witness, George Walsh, a UPMC Chautauqua nurse, was excused after a brief sidebar among Foley, the defense and the prosecution. Within the guidelines Foley instructed Barone on, the defense did not continue its line of questions with the intention of recalling Walsh to the stand at a later time.

Clark’s potential testimony detailed the night Michishima allegedly brought Kimberly Johnston’s and Waggoner’s stolen motorcycle to Bear Claw Campground and burned it, along with a camper and a car.

The prosecution questioned the relevancy of Clark’s testimony as the stolen motorcycle and its burning has already been testified to by other witnesses. After a recess to review certain evidence, Foley denied Clark’s testimony to be heard by the jury.

As it relates to the motorcycle burning incident, testimony from Dillon Pennell, deputy marshal, revealed an additional individual was present when authorities arrived to the fire. Both the unknown individual and Michishima fled. Michishima was found at a later time while the other individual was never identified.

Foley again directed Barone that any potential testimony detailing Michishima’s possible criminal or violent or medical history has to have been made aware to Waggoner prior to the shooting or be involved in the scope of events leading up to July 24.

Additional testimony during the seventh day of trial on Friday painted the defendant, Waggoner, as increasingly worried and the deceased, William J. Michishima, as remorseful leading up to July 24 shooting.

On Thursday, video was played for the jury from Jamestown Police Officer John Conti who transported Waggoner to Jamestown Police Department on the day of the shooting. In the video shown, Waggoner expressed to the JPD officer that Michishima had been visiting the 114 Livingston Ave. home and “scaring (the family) to death” in the days leading up to July 24.

Waggoner also indicated to Conti that Michishima wanted to join a motorcycle club he had formerly been associated with but no longer had ties to.

Conti remained on the stand on Friday. New video was played involving an interaction between Conti and Waggoner leading up to his interview at JPD that was conducted by Capt. Bob Samuelson.

During the additional video clip played for the jury today, Waggoner asked how Michishima was “doing.” Conti was unaware of Michishima’s condition.

Waggoner also indicated he has had trouble sleeping for two days due to concerns over Michishima.

“I haven’t been to (expletive) bed in two days because of him. I’m tired,” Waggoner was heard saying.

As for Michishima’s state of mind around the time of the shooting, witness Bryan Sleight, boyfriend of Michishima’s cousin, said he saw the deceased the night of July 23. At that time, Sleight said Michishima intended on making amends and said “he really messed up.”

According to Sleight, Michishima said he wasn’t going back to jail and was set on making amends as it related to Waggoner before he left Sleight’s home.

Court was adjourned until Tuesday at 9:30 a.m.