concurring in result.
I concur in the result reached by the majority, but I respectfully disagree with its reasoning as to why the attempted murder instruction given at trial was sufficient to withstand the prejudice prong of the Strickland test.
I agree that the attempted murder instruction here violates the rule set forth in Spradlin, 569 N.E.2d at 950, that an attempted murder instruction "must inform the jury that the State must prove beyond a reasonable doubt that the defendant, with intent to kill the victim, engaged in conduct which was a substantial step toward such killing." See slip op. at 8. Our courts have consistently held that a trial court's use of an instruction containing Spradlin error constitutes fundamental error, le., that it is prejudicial to the defendant. See Booker, T4l N.BE.2d at T51. Under that analysis, defense counsel's failure to object to such an erroneous instruction, then, ordinarily satisfies both prongs of the Strickland analysis: counsel's performance is deficient for failing to object to an instruction that is so clearly erroneous, and the resulting error is prejudicial to the defendant.
However, the use of an instruction containing Spradlin error is not per se prejudicial. Our Supreme Court has noted that "there have been cases where, despite clear Spradlin error, we did not vacate an attempted murder conviction because (1) the intent of the perpetrator was not a central issue at trial; (i) the instructions as a whole sufficiently suggested the requirement of intent to kill; or (iii) both." Williams v. State, 787 N.E.2d 734, 737 (Ind.2000) (footnotes omitted). With regard to the question of intent at trial, McCann argues that "whether the gun discharged accidentally or with the specific intent to kill was a key question for the jury to resolve on the attempted murder count." Appellant's Br. p. 8-9. Indeed, the State agrees that intent was a central issue at trial. The majority responds to McCann's contention here by finding that "[olbviously, the jury rejected any suggestion that the shooting was accidental; otherwise, it would have acquitted MeCann of attempted murder and the lesser included *917offenses of aggravated battery and battery." Slip op. at 8. To that end, the majority appears to believe that to the extent that intent was a central issue at trial, the jury in fact resolved the issue against McCann, which militates against reversal based on the Spradlin error. In other words, the majority concludes that even if the instruction failed to make clear to the jury the need to find specific intent to kill, because their decision indicates that they found that intent, we need not reverse based on the erroneous instruction.
This seems circular to me. If specific intent is a key issue at trial, I believe it is error for the trial court not to instruct the jury that the defendant must have the specific intent to kill before he may be found guilty of attempted murder. But our analysis does not end there. Under Williams, a Spradlin error is not per se prejudicial if the instructions as a whole sufficiently suggest the requirement of intent to kill. Here, the jury was adequately instructed on the mens rea of attempted murder.
The Indiana Supreme Court evaluated a jury instruction very similar to the one tendered at McCann's trial in Yerden v. State, 682 N.E.2d 1283 (Ind.1997). That instruction provided:
A Person attempts to commit a crime when he knowingly or intentionally engages in conduct that constitutes a substantial step toward the commission of the crime.
The crime of Murder is defined by statute as follows:
A person who knowingly or intentionally kills another human being commits Murder.
To convict the Defendant of Attempt Murder, in this case, the State must have proved each of the following elements:
1. The Defendant knowingly
2. Engaged in conduct that constituted a substantial step toward the commission of
3. Knowingly killing another human being.
The Defendant must have had the specific intent to commit Murder in order to be found guilty of Attempt Murder. Intent to kill may be inferred from the use of a deadly weapon in a manner reasonably calculated to cause death.
Id. at 1285. The Supreme Court held that although erroneous, "the instruction, on the whole, adequately informed the jury that Yerden must have intended to kill Bergstresser." Id. at 1286. Similar to this case, the instruction in Yerden stated that the defendant "must have had specific intent to commit murder." Id. Also, both instructions indicated that intent to kill may be inferred from the use of a deadly weapon in a manner reasonably calculated to cause death. Finally, I find further analogy between these two cases because the Yerden Court cited no other instructions given at Yerden's trial, nor any charging information or clarifying arguments by counsel, which might have furthered the jury's understanding of the mens rea required for attempted murder. Following Yerden, then, McCann cannot make a showing of prejudice sufficient to satisfy the Strickland test as to ineffective assistance of counsel. For that reason, I concur in the result reached by the majority.