8-28-2011 Wisconsin:OKAUCHEE - Police say an Okauchee homeowner shot and killed a man he claims broke into his house.
It happened around 2:00 a.m. Saturday on Wisconsin Ave.
The crime scene tape around his Okauchee home is gone but the memories of early Saturday morning are fresh and hard for Mike Fitzsimmons.
"I’m happy that I'm alive today,” Fitzsimmons told TMJ4 reporter Keller Russell.
He says he was asleep inside his home when he heard someone breaking in. He grabbed his flashlight and a gun.
"I confronted the guy and he told me he had a gun. He came at me with a gun,” said Fitzsimmons.
The homeowner told police he confronted the man in the garage and it moved to the back of the house. He says the man cornered him, threatening his life with a gun. Within minutes, Fitzsimmons says it was all over.
"I told him to drop it, backed up shot him, killed him."
The Town of Oconomowoc police say the man Fitzsimmons killed is James Babe IV, 39, of Waukesha. According to state court records, Babe is a life registered sex offender with a lengthy criminal history, including burglary.
Police are still trying to figure out why Babe was in Okauchee.
"It’s not normal out here -- people breaking into houses and somebody getting shot. It’s never happened in my career here,” said Lt. Russel Paar.
Neighbors said officers roped off the house in crime scene tape and worked through the early morning hours Saturday, into the evening. Police won’t say whether they found a gun near the alleged intruder, as Fitzsimmons described.
Mike Fitzsimmons says he acted in self defense, actions he’s still coming to grips with.
"I did not want this to happen. The last thing I want to do is something like that."
Police didn’t arrest Fitzsimmons. The department plans to hand the case over to the District Attorney’s office.
Babe's fiance tells TMJ4 he was in the area for a night out with friends at the bar. He also had family that lives in Oconomowoc. She said James Babe would never break into someones house or hurt anyone. She also claims he doesn't own a gun. She acknowledges Babe had a past but said he had committed himself to staying out of trouble and that would never do anything to take himself away from her and her two children. ..Source.. by Keller Russell
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No criminal charges coming in Okauchee fatal shooting
11-4-2011 Wisconsin:
An Okauchee man will not face criminal charges for fatally shooting an unarmed man who broke into his garage in August, Waukesha County District Attorney Brad Schimel announced Friday.
James P. Babe IV, 39, was killed outside Michael Fitzsimmons' home about 2 a.m. Aug. 27. Schimel determined that Fitzsimmons, 47, fired two shots in self-defense.
Schimel laid out the details of the case and his analysis in a four-page letter to Town of Oconomowoc Police Chief James Wallis. According to the letter:
There was no evidence Fitzsimmons, 47, and Babe knew each other or had any kind of dispute. Nor is there any indication why Babe, who had a blood-alcohol level of 0.22, had entered Fitzsimmons' garage.
Phone records showed Babe made a call on his cell phone at 1:59 a.m., and that Fitzsimmons called 911 at 2:01 a.m. The letter doesn't indicate whom Babe called.
Police arrived within minutes.
"It seems unlikely that Mr. Fitzsimmons would have had enough time to calm down from the traumatic incident and attempt to prepare a false version of events," Schimel wrote. Fitzsimmons story didn't change as the day went on, and physical evidence corroborated it.
Fitzsimmons said he awoke when he heard noise in his garage, that he approached it from his deck and yelled out asking who was there and stated that he had a gun. He said Babe yelled back that he had a gun, then emerged from the garage onto the deck and lunged at him with what Fitzsimmons believed was a gun. Fitzsimmons fired once, and when Babe did not immediately go down or back away, fired a second shot.
There was evidence someone had broken into the garage, and Babe's cell phone case and keys were found there. There was no evidence Fitzsimmons had touched Babe's cell phone in an effort to stage the scene, Schimel wrote. The letter does not specify where Babe's cell phone was recovered.
The letter also revealed that Fitzsimmons had smoked marijuana earlier that night, a fact learned after he voluntarily submitted to a blood test. But he showed no signs of impairment when officers arrived, Schimel said, and so couldn't be charged with being armed while intoxicated.
He said a lesser charge of being armed with detectable amount of restricted substance wasn't appropriate given Fitzsimmons lack of a criminal history and lack of evidence at his home of any "substantial drug activity."
Fitzsimmons' attorney, Paul Bucher, said Friday his client is extremely sorry the shooting happened, but was scared to death and felt he had no choice but to shoot.
"He feels terrible. He's been on pins and needles" awaiting Schimel's decision, Bucher said.
Schimel has said for weeks that he was waiting on DNA test results from the State Crime Lab to make his final decision about whether the shooting was justified. He said Friday he had finally gotten those results late Tuesday but wasn't able to meet with Babe's family until Thursday.
He said the fact the Legislature adopted a castle doctrine Friday, which provides even more legal protection for people who shoot intruders in their home, business or vehicles, was merely a coincidence. He said the law is unlikely to affect most prosecutors' decisions in similar cases.
"If I believe that the evidence demonstrates that the use of force was justified, I will not issue charges," he said. "I do not know how this will impact civil cases." ..Source.. by Bruce Vielmetti of the Journal Sentinel
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