Judge delays decision on request to dismiss case against Delavan man accused of killing his cousin
ELKHORN—A Walworth County judge wants more information before deciding whether to dismiss the murder charge against a Delavan man suspected of stabbing his cousin to death.
Rafael Olivarez, 39, is charged with first-degree intentional homicide. He is accused of stabbing to death Ivan Guerrero, 31, at Guerrero's apartment at 509 Lawson School Road, Delavan, early in the morning May 4.
Travis Schwantes, Olivarez's attorney, on June 5 filed a motion to dismiss the case and release his client. He claims a key fact in a “bare bones” criminal complaint is wrong.
The complaint indicates Guerrero's wife, Brenda Garcia, told police she "saw the defendant grab a kitchen knife and stab Guerrero."
“That sentence is really important … That is the only basis of the knowledge on how or why the state believes Mr. Olivarez is responsible for a criminal offense,” Schwantes said in court Thursday.
The complaint contradicts reports from Delavan police officer Richard Kendall and sheriff's detective Michael Lambert. Their reports indicate Garcia didn't see the altercation, Schwantes said.
The state “rejects and disagrees with the motion,” Haley Rea, assistant district attorney, said in court.
After Schwantes filed the motion, the state asked Joaquin Alonzo, Delavan police detective, to speak with Garcia a third time.
Garcia told Alonzo she “didn't directly see the object used to strike her husband," Rea summarized. "However, she did see the defendant over her husband's body. She saw blood at the same time her husband was being hit.”
Based on what she saw, Garcia believes Olivarez stabbed Guerrero, Rea said.
With these clarifications, Garcia's “statements do all match up,” Rea said. She later added that based on Kendall's reports a “reasonable inference” is Garcia saw the crime and the discrepancies have “all been clarified.”
Schwantes said the information doesn't mean Garcia saw the stabbing.
Court Commissioner Daniel Johnson ruled May 14 there was sufficient evidence that Olivarez probably committed a felony based on the criminal complaint filed as evidence.
"Absent the false statement in the complaint that Brenda Garcia saw Mr. Olivarez stab Ivan Guerrero, there was no probable cause established at the preliminary hearing May 14th that Mr. Olivarez committed a felony," Schwantes wrote in his affidavit.
Rea said probable cause still could be found using other information in the criminal complaint, such as Olivarez being “outside with the victim lying on the ground,” and Olivarez “covered in blood and attacking the victim.”
Schwantes also raised a question on how prosecutors could use Kendall's information in the criminal complaint when the officer's report wasn't received by the district attorney's office until May 14. The criminal complaint was filed May 7.
Lambert's report was received May 5, Schwantes said.
Judge David Reddy asked Rea about the source of the questioned statement.
Rea said she didn't know because she didn't prepare the complaint. District Attorney Daniel Necci likely spoke to officers when he was at the crime scene that morning, she said.
"In these type of cases, it's obviously important to get a complaint filed right away," Rea said. "So before the reports came to our offices, he may have been in contact with the officers about what they saw or heard.”
Necci was at a conference Thursday, she told Reddy when he asked about Necci's whereabouts.
Reddy said he was contemplating taking testimony before making a decision.
He later asked that Necci, Kendall and a transcript of the preliminary hearing be available when the motion hearing continues at 11 a.m. July 10.
Olivarez remains locked in the Walworth County Jail on a $1 million cash bond.