State amends complaint that said victim’s wife saw stabbing
By Vicky Wedig
Editor
A murder charge against Rafael Olivarez will not be dismissed, but a new preliminary hearing will take place to determine whether sufficient cause is shown to bind him over for trial.
Olivarez, 39, of Delavan, appeared in court Wednesday on a motion by his defense attorney, Travis Schwantes, to dismiss the homicide charge against him. Olivarez is charged in the May 4 stabbing death of his cousin, Ivan Guerrero, 31, at Guerrero’s Lawson School Road home.
Schwantes argued the charge should be dismissed because Olivarez was bound over for trial at a preliminary hearing May 14 based on allegations set forth in a criminal complaint that contained false information.
The original criminal complaint says that Brenda Garcia, Guerrero’s wife, told Delavan police officer Rick Kendall that she saw Olivarez grab a kitchen knife and stab Guerrero.
The state filed an amended criminal complaint July 25 that does not contain that statement but relays a June 11 statement by Garcia. In that interview, Garcia told Delavan police Detective Joaquin Alonzo that she saw Olivarez on top of her husband as Olivarez was hitting Guerrero with something, according to the amended complaint. She said she saw blood at the same time Olivarez was hitting Guerrero but did not know what Olivarez was hitting her husband with. Garcia said Olivarez’s body was covering what he was doing, but, she said, later outside her home she saw a knife from her house on the ground, according to the complaint.
On Wednesday, 23 people attended the motion hearing, mostly members of Guerrero’s family including children, some of whom wore T-shirts that read, “Justice 4 Ivan.”
As Olivarez was escorted into the courtroom from jail, he made eye contact with and gave a nod to two of his aunts, who sat opposite Guerrero’s family in the courtroom.
Judge David Reddy asked Schwantes whether the amended criminal complaint satisfied the concerns he set forth in his motion to dismiss.
Schwantes asked Reddy to rule on whether probable cause exists in the amended complaint and set a new preliminary hearing. He said by filing the amended complaint, the state is conceding the original one was deficient.
District Attorney Dan Necci, who appeared for the state, did not oppose having another preliminary hearing but said the state does not concede its original complaint was deficient. He said the original complaint more simply relayed Garcia’s statement rather than arguing the definition of “saw.”
The court set a preliminary hearing for Sept. 2 before Judge Phil Koss.
