JAMESTOWN – Chautauqua County Public Defender Ned Barone’s final witness in the David F. Waggoner murder trial was Waggoner’s longtime companion, Kimberly Johnston.
Johnston testified Tuesday that William Michishima, the man who Waggoner allegedly shot and killed on Jul. 24, tried to enter a side door at 114 Livingston Ave. the morning of the shooting.
Johnston also testified that she saw Waggoner grab a small weapon before heading to confront Michishima, but was unable to identify a .22-revolver that was previously admitted by the prosecution as evidence.
Chautauqua County District Attorney Patrick Swanson previously called Johnston to the stand to testify, as part of a prosecutorial agreement, that she took two weapons from Waggoner the morning of the shooting for disposal. Only one was admitted into evidence.
Swanson, during cross-examination Tuesday afternoon, asked Johnston about a sworn statement that she reportedly made to police at 10:45 a.m. the morning of the shooting. Johnston recalled Waggoner saying the following to Michishima as part of her statement, “Just get off the bike now. It’s mine now. Just walk away.”
Court will resume at 9:30 a.m. this morning. Both sides will make a closing statement, and Judge Foley will instruct the jury on what they can consider, which includes a charge of second-degree murder or a lesser included offense of second-degree manslaughter.
The jury can convict on one or the other but can’t convict on both. In addition, the jury can find Waggoner not guilty or not guilty by justification on all counts.
Barone’s attempt to add criminally negligent homicide as a third charge of consideration was denied.