District Attorney Rests Case In Murder Trial After Calling Three Key Witnesses

Livingston Avenue murder suspect David Waggoner appears in court. 03/14/19. Image by Matt Hummel/WNYNewsNow.

MAYVILLE – Chautauqua County District Attorney Patrick Swanson concluded his arguments in the second-degree murder trial for David F. Waggoner Tuesday afternoon by calling three of the witnesses he highlighted during his opening statement last Wednesday in Chautauqua County Court. 

The prosecution’s second witness of the day was Daryl Ferraro, who Swanson previously indicated was one of two witnesses who observed Waggoner allegedly shooting and killing William “Billy” Michishima the morning of Jul. 24 near 114 Livingston Ave. Ferraro stated that he saw two guys hitting each other for “a few seconds.”

Ferraro said that one of the two guys was facing him, and the other guy was turned away from him. The guy looking away pulled out a gun and fired at the other guy’s head after he fell. During cross-examination from Public Defender Ned Barone, Ferraro said that the guy looking away (who he previously identified as Waggoner) pulled the gun from his pocket.

In addition, Ferraro said he heard one pop.

Tod Ness, the next person to testify, also witnessed the shooting as he was riding in a truck with Ferraro.

“I saw the gentlemen (who he previously identified as Waggoner) pull the gun. I heard a pop and the other man fell,” Ness said. Barone, during cross-examination, asked Ness to confirm a series of previous convictions on multiple offenses, including felony and misdemeanor driving while intoxicated.

Barone asked if Ness was under the influence of alcohol or any other illegal substance while testifying, as well as if he was the morning of Jul. 24. Ness replied with “No” both times.

David Winner was the last person to testify for the DA’s office. Winner testified that him and his wife were traveling on Hammond Street towards Livingston Avenue when they noticed someone was lying in the road next to a curb near a motorcycle.

Winner, when trying to help the person in the street, testified that he heard someone say there was a gun. The Jamestown man said that a skinny man with long hair, who he identified in the court as Waggoner, began to wave his arms and didn’t have a gun with him.

According to Winner, Waggoner said, “There’s no f****** gun, there’s no f****** gun. Billy tripped and fell.” At that point, Winner said that he noticed a big pool of blood that was coming out of the man’s head.

Winner recalled saying, “Looks like a lot of blood for falling.” In addition, Winner said that the defendant said, “Come on, get up,” to the man lying on his back. Waggoner, according to Winner, tried to pull a square item out of the injured man’s hand. Winner, however, later testified that he didn’t see what the item was.

During cross-examination from Barone, Winner acknowledged that he never saw Waggoner with a gun. Winner also said that he didn’t see anything prior to the man bleeding, and that Waggoner never made any threats.

As WNYNewsNow reported Tuesday, former JPD investigator Floyd Kent testified about the weapons that Kimberly Johnston admitted to tampering with during previous testimony of her own. During Barone’s cross-examination of Kent, he asked the investigator if he knew the person lying on the ground as Michishima based on previous “work-related items.”

First Assistant District Attorney Michael Flaherty objected, based on relevance. Judge David Foley sustained the objection, saying that he was “not going to open up for character assassination” of Michishima on any previous legal matters, other than the motorcycle incident, because Foley believes the Jul. 24 incident stemmed from the motorcycles.

Judge Foley ruled that Barone has to prove that Waggoner knew about Michishima having the propensity for violence based on previous threats, which would make Michishima the “initial aggressor.”

Barone’s argument continued, saying that Waggoner would have to testify and violate his Fifth Amendment rights against self-incrimination.

Court will resume Thursday morning at 9:30 a.m. in Chautauqua County Court. Barone will begin calling his witnesses.

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