Deliberations Begin Following Closing Statements, Instruction In Murder Trial

Livingston Avenue murder suspect David Waggoner appears in court. 03/26/19. Image by Matt Hummel/WNYNewsNow.

MAYVILLE – After nearly four hours of closing statements and instruction in Chautauqua County Court, the jury began deliberation Wednesday afternoon in the David F. Waggoner murder trial.

Waggoner, of Jamestown, is accused of killing William J. Michishima, also of Jamestown, near the area of 114 Livingston Ave. in Jamestown last July. Waggoner’s original indictment was for second-degree murder (count one), but Judge David Foley is instructing the jury to possibly consider a lesser charge of second-degree manslaughter.

Foley, during instruction of the jury, stated that second-degree murder when a person intentionally causes the death of another person. Second-degree manslaughter, meanwhile, is when a person “recklessly causes death,” according to Foley. The judge told the jury that if they find Waggoner not guilty due to justification, they can not deliberate on the second-degree manslaughter (count two).

According to Foley, however, the jury can still deliberate on the second count should they find Waggoner not guilty for any other reason besides justification. Waggoner can’t be convicted on both counts, and the jury must reach a unanimous decision.

Barone was successful Tuesday afternoon in having a motion granted by Foley to include the second-degree manslaughter charge as a lesser included offense, but his petition to have a criminally negligent homicide charge added as a lesser included defense was denied. In addition, Foley denied another motion by Barone to dismiss the second-degree murder charge.

Prior to Foley’s instructions and charge to the jury, Barone and District Attorney Patrick Swanson made their closing statements. Barone reiterated that Waggoner faced a “life or death” situation.

“Most of us are fortunate enough to go through life being able to avoid danger, being able to avoid violence. Unfortunately, situations arise that some of us are unable to do that,” Barone said.

“This particular situation put David Waggoner in that position.”

“We’re programmed as human beings. We have instincts, and when faced with danger or the threat of death or the threat of great bodily harm, we’re programmed to do certain things,” Barone added. “When put in a situation where we believe that we’re going to either be seriously hurt or killed, we react.”

Swanson, meanwhile, told the jury that he was able to prove that the alleged shooting wasn’t an accident.

“You now have heard credible evidence that on Jul. 24, 2018, at about 9 a.m. the defendant raised a gun pointed it at the head at Billy Michishima and pulled the trigger, killing him,” Swanson said. “This was not a mistake. This was not an accident. At that moment in time, the defendant intended to kill Billy, and he did.”

Foley did instruct the jury that they are the only ones who can determine that evidence is credible.

The jury sent two notes to Foley during deliberation. One was to ask what would happen if the panel was unable to reach a verdict before 4:30 p.m. The other was a request to review Jamestown Police Captain Robert Samuelson’s interview of Waggoner following the shooting.

Deliberations are scheduled to continue Thursday.

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