August 19, 2014 | 02:11 PMELKHORN — The suspect in a fatal stabbing in Delavan will have a new preliminary hearing after his defense team called the original criminal complaint defective, moved to dismiss the charges and argued that he was bound over for trial without probable cause.
Rafael Olivarez, 39, has been charged with first-degree intentional homicide. If convicted, he faces life imprisonment.
Police believe that during the early morning hours of May 4 Olivarez fatally stabbed Ivan Guerrero, a 31-year-old Delavan father and Olivarez’s cousin by marriage.
The previous evening, Olivarez had attended a party at Guerrero’s Delavan apartment where a group of people watched the Floyd Mayweather and Marcos Maidana fight on pay-per-view. After the other guests left, Olivarez allegedly attacked Guerrero, according to police reports.
Guerrero’s wife, Brenda Garcia, told police that she believes the stabbing was a mistaken act of retaliation. In 2000, Milwaukee police ruled the death of Jesse Perez, Olivarez’s cousin and a former roommate of Guerrero, a suicide.
However, Garcia and others told police that Olivarez believed Guerrero was responsible for Perez’s death.
Judge David Reddy ruled that a new preliminary hearing was necessary during a brief court hearing on Aug. 13. During the hearing, half of the courtroom gallery was filled with friends and family of Guerrero. Some of Guerrero’s friends wore T-shirts to support him. At the last hearing, only a handful of Guerrero’s supporters were in attendance.
Original preliminary hearing
During Olivarerz’s first preliminary hearing, which occurred on May 14, Walworth County District Attorney Daniel Necci called a Delavan police officer and detective to the witness stand. He also entered the original criminal complaint into evidence.
Court Commissioner Daniel Johnson found enough probable cause to bind Olivarez over for trial. During the hearing, he said the criminal complaint was part of the reason he found probable cause.
The original criminal complaint states that Garcia saw the stabbing, but according to police reports filed by Walworth County Sheriff’s Detective Michael Lambert, Garcia didn’t see the actual stabbing.
On June 11, during an interview with Delavan Police Detective Joaquin Alonzo, Garcia said she saw Olivarez attack her husband with an unknown object and that she saw blood, according to the new criminal complaint.
She said when she went outside she saw a knife from her house on the ground.
In a motion, defense attorneys Travis Schwantes and Julia May, stated that the case should be dismissed because of the conflicting statements in the criminal complaint and police reports.
After the District Attorney’s office filed the new compliant, Schwantes asked Reddy to hold a new preliminary hearing because during the original hearing Johnson relied on evidence that contained the conflicting statement.
“I do agree that another preliminary hearing will be necessary,” Reddy said.
Necci didn’t argue with Schwantes’ request for a new preliminary hearing.
However, he told Reddy that he wouldn’t concede that there was anything wrong with the original complaint.
Although the new hearing is a victory for the defense, it isn’t a major setback to prosecutors.
Defense attorneys are not typically provided a copy of the police reports until after the preliminary hearing.
During the new preliminary hearing, Schwantes and May will have the benefit of having received and reviewed the police reports, and the two will be able to ask more pointed questions during witness cross examinations.
However, the state will still only need to prove probable cause that Olivarez committed a felony. The judge is also required to rule in the light most favorable to the state.