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08/20/87 RAFAEL MELENDEZ v. STATE INDIANA

Filed: August 20, 1987.

RAFAEL MELENDEZ, APPELLANT (DEFENDANT BELOW),
v.
STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW)



APPEAL FROM THE LAKE SUPERIOR COURT, The Honorable Richard W. Maroc, Judge, Cause Number 1CR-201-1184-834.

Shepard, C.j., DeBRULER, Givan, Pivarnik and Dickson, JJ., Concur.

Author: Shepard

SHEPARD, C.J.

Following a trial by jury, appellant Rafael Melendez was convicted of murder, Ind. Code § 35-42-1-1 (Burns 1984 Supp.). The court sentenced him to forty years in prison. He raises three issues on direct appeal:

1) Whether the trial court erred in admitting two photographs of the victim which showed incisions and sutures made in an attempt to save the victim's life;

2) Whether the trial court erred in instructing the jury on voluntary intoxication, and

3) Whether the evidence was sufficient to prove that Melendez intended to kill the victim.

The evidence showed that Melendez and Jorge Villanueva went to Frank Pilipow's home several times on November 18, 1984. Melendez and Pilipow drank together during these visits. During the last visit, Melendez picked up a stick as he and Villanueva entered Pilipow's apartment. Fearing trouble, Villanueva left. Pilipow's sister, Josephine Minchuk, lived in an apartment two floors above Pilipow. She visited her brother regularly. When she went downstairs on that afternoon, she saw her brother lying on the floor bleeding from wounds to his head and back. A man in a brown coat was standing over the victim. Seeing Minchuk on the stairs, the man ran out another door.

After arriving at the home of Ramon Vera, Melendez told Vera and Villanueva that he had stabbed Pilipow about five or six times and killed him. Police arrived and arrested Melendez at Vera's apartment, where they recovered two knives. One knife belonged to Melendez and was found under a stereo where he had thrown it. The other matched a set of knives found in the victim's apartment; it was discovered in appellant's pocket.

Melendez gave a statement describing a fight he had had with the victim. He said that Pilipow shoved him, and that he had started to knock Pilipow back. He could remember nothing thereafter, until he saw the victim lying on the floor and Minchuk entering the apartment.

I. Photographs

Melendez alleges error in the admission of two photographs depicting the victim's body after doctors had performed surgery and sutured wounds in an attempt to save the victim's life. He argues that the photographs were improperly admitted because they depicted both those wounds caused by physicians and those wounds caused by the murder weapon. Melendez contends that, without further explanation, the jury could be confused about which wounds were allegedly inflicted by him.

Admission of photographs is within the discretion of the trial court; its decision will not be overturned absent a showing of clear error. Fine v. State (1986), Ind., 490 N.E.2d 305, 307. Photographs which show the victim in a natural state following death generally are relevant and admissible. Loy v. State (1982), Ind., 436 N.E.2d 1125, 1128. Photographs which show the victim's body altered by attempts at resuscitation have been held admissible when accompanied by testimony which differentiates wounds caused by physicians from those attributed to the defendant. Romine v. State (1983), Ind., 455 N.E.2d 911, 916 (pathologist identified those wounds caused by physicians and those caused by murder weapon); Simpson v. State (1978), 269 Ind. 495, 503, 381 N.E.2d 1229, 1234 (both operating surgeon and pathologist indicated which marks were surgical and which were caused by shotgun blast).

In this case, the victim was not photographed at the scene of the crime. Emergency personnel were involved in an urgent attempt to save his life. The only photographic evidence available to show the nature and extent of the victim's wounds were those taken after medical treatment had been administered. Melendez argues that these photographs ...


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