David Waggoner is pictured in Chautauqua County Court in 2019. P-J file photo

The Chautauqua County District Attorney’s Office has scored a pair of appellate court victories, one affirming a 2019 murder conviction and the other reversing a County Court ruling in an open drug case.

On Friday, the Appellate Division of state Supreme Court, Fourth Department, affirmed the second-degree murder conviction of David Waggoner. The former Jamestown resident was accused of killing William Michishima the morning of July 24, 2018, following an argument in front of 114 Livingston Ave. in Jamestown.

Ned Barone, Chautauqua County public defender who defended Waggoner, maintained throughout the trial that Michishima was the aggressor when he visited Waggoner that morning. Two witnesses described seeing the two men fight before Michishima was shot in the head.

During the trial, Barone described Waggoner’s circumstance as a “life and death situation.” The public defender maintained Waggoner acted in response to Michishima’s initial aggression, and that a progression of increasingly hostile events by Michishima lead to the shooting.

Jurors came back with a guilty verdict on the second day of deliberations, capping a two-and-a-half-week trial. Then-District Attorney Patrick Swanson prosecuted the case.

Waggoner was later sentenced by County Court Judge David Foley to an indeterminate sentence of 20 years to life in prison. He’s currently serving his sentence at the Attica Correctional Facility.

In his appeal, Waggoner claims the court’s charge to the jury on his justification defense was insufficient “because the jury was not instructed that a justification defense could include a defense of third parties.” The court said Waggoner did not request the jury be charged at trial and did not object to the justification charge given at the time by the court.

Waggoner also claims the court erred by refusing to include an instruction for justification in defense of premises. However, the court said there was no evidence a burglary was about to take place, noting that the altercation occurred in the street.

“There is no reasonable view of the evidence under which the jury could have found that (Waggoner’s) actions were justified to prevent the victim from burglarizing the house,” the appellate court ruled.

In his appeal, Waggoner also claimed the court erred in refusing to instruct the jury on a lesser offense of criminally negligent homicide; by refusing to suppress evidence obtained in a “showup” identification procedure; by refusing to suppress statements he made to the police; and that the sentence was “unduly harsh and severe.” The court rejected all of the claims. Waggoner’s appeal was handled by the Legal Aid Bureau of Buffalo.

RULING REVERSED

The court on Friday also ruled in favor of the District Attorney’s Office, which appealed a June 2022 ruling by Foley in an open narcotics case involving Shawn Conway of Westfield. The DA’s office asked the court to reverse a motion granted by Foley that suppressed evidence obtained through a search warrant.

In a two-count indictment, Conway is facing charges of second- and third-degree criminal possession of a controlled substance. He was taken into custody in October 2021 after a warrant was executed at a Findley Lake hotel room. According to the Chautauqua County Sheriff’s Office, the warrant had been issued earlier based on a months-long investigation.

Conway was located inside a room, along with 224 grams of methamphetamine, 109 grams of fentanyl, 12.83 grams of cocaine, 29 grams of crack cocaine, 40 dosage units of morphine and a quantity of cash, the Sheriff’s Office said in a news release.

In an omnibus motion, Conway sought the suppression of evidence on the grounds the search warrant application failed to establish the veracity of a confidential informant. He also requested a Darden hearing to confirm the existence of the informant.

Foley granted the omnibus motion to suppress the evidence without conducting the hearing, believing that the veracity component had not been met.

“The court reasoned that, although the investigator minimally recited the (confidential informant’s) track record of reliability, the remainder of the application consisted of conclusory statements that the investigator and other officers had been investigating the narcotics operation for approximately one month, and did not provide details of any direct observations made by law enforcement officers during the investigation,” the ruling notes. “The court rejected the People’s contention that the CI’s track record of reliability was enough on its own to satisfy the veracity prong.”

The DA’s Office, in its appeal of Foley’s June 2022 ruling, said the information in the search warrant application satisfied the veracity component because it “sufficiently established the CI’s track record of reliability, and independent corroboration of the information provided by the CI was not required in this case.”

The court agreed.

“It is well settled that a search warrant may be issued only ‘upon a showing of probable cause to believe that a crime has occurred, is occurring, or is about to occur,'” the five-page ruling states.

It further reads, “regarding the veracity of the CI, the investigator averred in support of the search warrant application that the CI, who had been assigned a particular confidential informant number, was found to be honest, trustworthy, and reliable based on the CI’s past work with the investigator. The investigator specified that prior information supplied by the CI had led to search warrants, one of which led to the arrest of an individual. Additionally, the investigator averred that the CI had performed controlled drug transactions on behalf of law enforcement that had resulted in the arrests of other suspects.”

As part of its ruling, the appellate court denied the omnibus motion to suppress evidence and remitted the matter back to County Court for further proceedings on the indictment. The court did note that Conway should be allowed to renew his request for a Darden hearing to challenges the existence of the informant.

Erik Bentley, second assistant district attorney, handled the appeal for the DA’s Office.

In June of this year, Conway was sentenced by Foley to 11 years in prison on a separate drug possession case in the town of Portland. In that incident, from April 2022, Conway was allegedly found with crack cocaine and fentanyl, while investigators located 8.12 ounces of cocaine, 4.84 ounces of fentanyl and 1.4 grams methamphetamine inside a John Street home in Brocton.

Conway pleaded guilty to a first-degree criminal possession of a controlled substance charge. He’s currently serving that sentence at the Sing Sing Correctional Facility.