BENSON -- Five years after Nichole Riley-Lemcke, 26, was fatally shot in her Appleton home, her husband will stand trial on charges of first-degree, premeditated and second-degree, intentional murder.
In a series of rulings issued recently, District Judge Jon Stafsholt found there was probable cause to proceed with a trial on the indictments issued by a grand jury against Andrew Lemcke, 34, of Appleton.
Stafsholt dismissed defense motions that challenged the convening of the grand jury, testimony presented to it and prosecutorial act-ions. The judge ordered a change of venue from Swift County to Pope County, citing the previous convening of two grand juries in Swift County and the extensive newspaper coverage accorded the case, in particular a letter the defendant had published outlining his version of events. Stafsholt ordered that jury selection begin Oct. 19 in Glenwood.
Lemcke is free after posting $10,000 cash bail on Dec. 19, 2008. He had been working as a corrections officer in Arizona until a grand jury issued its indictments in November 2008. A previous grand jury convened in April 2005 had returned no bill of indictment.
The court record revealed with the judge's recent rulings makes clear how the state will be challenging Lemcke's account of the Sept. 12, 2004, shooting as accidental. Until now, the state's allegations have been made only in grand jury proceedings, which are not public.
The state alleges that Nichole Riley-Lemcke had made known her desire to separate from her husband; was having an affair that he knew about; and had sex with her lover before returning to their home only a couple of hours before the shooting.
Lemcke has maintained that the shooting happened when his wife was sleep-walking. They were sleeping on separate couches in the living room. She went to an upstairs bedroom, grabbed a pistol and fired a shot into the wall, waking him up. She repeatedly asked the whereabouts of her son and expressed fear of the boy's father, her ex-boyfriend, according to his account.
Lemcke said he grabbed the gun and his wife, they fell onto the sofa where she had been sleeping and it discharged. He told authorities that he rushed her to the Appleton Hospital. He paused only to place her on the living room floor to grab his car keys and call 911.
That call was recorded at the Swift County dispatch center at 6:43 a.m.
Lemcke's next-door neighbor was outside and heard two gunshots a few seconds apart and heard someone yell. He walked back into his house to see the time of 6:36 a.m. on his microwave. Found later to be on the exact time as the dispatch center's clock, it indicates that seven minutes elapsed between the shooting and 911 call, according to testimony provided to the grand jury.
The grand jury also heard testimony that Lemcke was specially trained and "very proficient'' in the art of safely disarming someone as a member of the Special Operations Response Team at the Prairie Correctional Facility in Appleton, where he worked as a corrections officer. He would have severely injured his hand when the firearm discharged had he grabbed it as he claimed, according to the testimony.
The testimony presented to the grand jury also indicates that the .40-caliber pistol had been fired when it was up against the skin of Riley-Lemcke's chin as she was lying on the sofa; the bullet exited the top of her head.
Other testimony brought to the grand jury alleges that she had bled profusely for three or four minutes on the couch and for one or two minutes on the living room floor. Lemcke allegedly carried her out of the house over his shoulders, her head and hair dangling on his back.
At the hospital, the responding emergency room nurse said that he was hysterical but that he used the emergency room phone to make a phone call. She had a difficult time getting him off the emergency room phone and using it to make a 911 call asking for more help, according to the testimony presented.
Riley-Lemcke was pronounced dead by a physician at 6:55 a.m.
Her death came after weeks of strife between the two, according to the testimony of her friends. The testimony included statements from two witnesses who said Lemcke was seeking a life insurance policy on his wife.
Riley-Lemcke's best friend testified that Lemcke had asked if he could use the library's Internet to acquire the policy without giving his name. He told her he was interested in the policy because he had "heart problems,'' according to the allegations.
On the night leading to the shooting, Nichole Riley-Lemcke and Andrew Lemcke had attended a going-away party for the local National Guard troops being deployed to Iraq. They had words, and she told her husband to go home at one point.
She eventually ended up at a friend's house, called her lover, and they had sex. Lemcke called the lover's wife at 3:20 a.m. to ask if her husband was there and if she had seen his wife, but did not state anything more, according to the testimony.
Nichole Riley-Lemcke had told friends that she believed she was pregnant with her lover's child, but may have miscarried, according to the allegations presented to the grand jury.
She returned home sometime after 4 a.m. Her lover was among the troops deployed to Iraq.