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Aurora

Defense moves to dismiss homicide case



Olivarez_Rafael
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Olivarez
June 05, 2014 | 03:59 PM
ELKHORN — The defense attorneys for a Delavan man accused of stabbing and killing his cousin have filed a motion to dismiss the case because of conflicting reports of a witness’ statement.

Rafael Olivarez, 39, of Delavan is facing a felony charge of first-degree intentional homicide after he allegedly stabbed to death 31-year-old Ivan Guerrero, also of Delavan.

Olivarez is represented by Travis Schwantes and Julia May, both of the public defender’s office. A motion was filed on June 5 to dismiss the case and to release Olivarez from jail immediately.

According to the motion, the criminal complaint states that Brenda Garcia, Guerrero’s wife, saw Olivarez stab her husband. On May 4, Walworth County Det. Michael Lambert interviewed Garcia, and, stated “she did not see the actual stabbing.”

“The highlighted statement in the criminal complaint and the highlighted statement in Detective Lambert’s report are diametrically opposed,” Schwantes wrote in a motion. “There is no way that both statements can be true.”

Click here to read the motion

After the hearing, District Attorney Daniel Necci said the motion was “baseless.”

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Schwantes’ motion also states that the case should be dismissed because probable cause was not established during the preliminary hearing.

During the May 14 preliminary hearing, Delavan Police Officer James Berlin and Det. David Smith both testified. However, neither testified “about the events leading to Ivan Guerrero’s death.”

“The court allowed into evidence exhibit one, the criminal complaint in this file,” the motion states.

During the hearing, Court Commissioner Daniel Johnson said that the witnesses' statements alone did not establish probable cause, but probable cause was established with the admission of the criminal complaint.

“Without the false statement that Brenda Garcia ‘saw’ Mr. Olivarez stabbed (sic) Mr. Guerrero, the criminal complaint lacks probable cause that Mr. Olivarez committed the offense alleged which, in turn, means the bindover decision is defective lacking probable cause, and must result in dismissal.”

Case background

On May 4, Berlin responded to a 911 call on Lawson School Road. The first person he saw on the scene was Olivarez, who was waiving him down.

“I saw a male Hispanic approaching me, waiving me down,” Berlin testified during the preliminary hearing. “He was covered in blood, what appeared to be blood.” At the apartments the night of the stabbing, Olivarez directed Berlin to Guerrero.

Berlin said Olivarez then showed him where Guerrero was laying the grass.

“There was a male Hispanic laying in the grass,” Berlin said. “He also was covered in blood and had a stab wound in his chest and some slashing marks on his right arm.”

The officer described Guerrero’s stab wound as about 5 inches long, 2 inches wide and so deep that it “appeared to have visceral fatty tissue exposed,” according to the complaint.

Garcia told police that Olivarez was a guest at their home, and when he was at the home he became belligerent with Guerrero.

Olivarez apparently attempted to attack Guerrero and Garcia intervened, but she was struck several times and thrown to the side, according to the criminal complaint.

When taking Olivarez into custody, Olivarez allegedly stated “I might be in prison for the rest of my life, but I got Mexicans that will take care of things for me out here,” according to the complaint. An autopsy ruled that Guerrero died of multiple stab wounds.

Also during the preliminary hearing, Delavan Det. David Smith testified that he attended the autopsy that was conducted by Dr. Zelda Okia of the Waukesha County Medical Examiner’s Office.

“She determined that he died from blood loss due to multiple stab wounds,” Smith testified.

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