Stewart v. State

Although I concur as to Parts I and II, I dissent as to Parts III and IV.

Stewart correctly argues that the trial court failed to properly instruct the jury concerning the State's burden to prove specific intent to commit murder as an essential element of attempted murder. Failure to instruct the jury on this element is fundamental error. Smith v. State (1984) Ind., 459 N.E.2d 355.1 The issue therefore need not be couched in terms of ineffective assistance of trial and appellate counsel to merit review on appeal. Propes, supra, 550 N.E.2d 755.

The following instruction was read to the jury in…