Okauchee homeowner shot intruder twice, affidavit says
Man was unarmed but may have had cellphone in hand, documents say
Waukesha - The intruder killed by an Okauchee homeowner on Saturday died after being shot twice in the upper chest with rounds apparently fired from a .357 revolver, according to an affidavit in support of a search warrant.
Homeowner Michael Fitzsimmons told investigators that he thought the intruder, James P. Babe IV, 39, was armed when he fired the shots about 2 a.m. Saturday, according to the affidavit.
Babe was unarmed, although investigators believe he may have had a gray cellphone in his right hand when he was shot, the court records state.
Officers found Babe's body face up outside on a deck where he was shot. The cellphone was on his upper chest/shoulder area in a position that made it appear that the phone dropped from Babe's right hand as he fell to the deck, the affidavit says.
The search warrant and affidavit were filed in Waukesha County Circuit Court to allow officers to search Fitzsimmons' home. They were looking for clothing items and towels that might have blood on them as well as handguns and ammunition. They also wanted a plank from the deck that has blood on it and an indentation in it believed to have been caused by a handgun round.
The court records indicate that investigators took ammunition and a piece of the deck as a result of the search.
Waukesha County District Attorney Brad Schimel has not made a decision yet on whether to charge Fitzsimmons with any crime. He said Monday that he was awaiting testing by the State Crime Laboratory and some follow-up investigation.
According to the affidavit:
Fitzsimmons told officers he was awakened by noises Saturday morning. He got his .357 revolver and a flashlight and went outside through the front door to check.
He saw that the service door to his attached garage was open, and he called out demanding to know who was in his garage. A male responded with, "Who the (expletive) are you," and Fitzsimmons told the intruder that he had a gun.
The man told Fitzsimmons that he also had a gun, Fitzsimmons told Town of Oconomowoc police officers, and came out of the garage waving his arms in a threatening manner.
Fitzsimmons pushed the intruder away, but dropped his flashlight. He told police he began backing up on the narrow deck and fired when he was cornered and saw the intruder with something in his right hand, according to the affidavit.
Fitzsimmons called 911 and reported he had shot an intruder.
When officers first arrived on the scene, they found Fitzsimmons seated on his front porch and wearing only his underwear.
In questioning him, they noticed that he didn't have any blood on him, which they thought was unusual. Typically, there is blood spatter from close-range shots from a large handgun, the affidavit states.
"Given that there was no evidence of any blood on the body of Mr. Fitzsimmons or his underwear, it is possible that if Mr. Fitzsimmons is not being truthful about the circumstances, he may have taken off outer layers of clothing . . . or may have wiped off blood or washed up prior to police arriving," the affidavit states.
Fitzsimmons allowed officers into his residence to retrieve his handgun, which they found on a kitchen counter.
Fitzsimmons could not be reached for comment.
According to court records, Babe was convicted of burglary in 1993 and was a registered sex offender for a 1993 conviction for sexual assault of a child. In the early 2000s, he had convictions for disorderly conduct and attempted possession of marijuana.
