dissenting.
In my view the instructions given as to the crime of attempted murder were erroneous and require reversal of the conviction. For this reason I dissent.
Terry asserts that taken together Instructions 4 and 5 misled the jury in that they advised that a conviction would be appropriate without proof that he had the specific intent to kill Mr. Orange. Although in the context of the charge itself, this very contention was made by Terry in his direct appeal and was rejected by our Supreme Court as harmless error, if error at all. The Court said:
“In the case at bar the information filed used the term murder on two occasions. Appellant was sufficiently apprised of the allegation to offer self-defense as a defense. It cannot be said the error, if any, was blatant and the potential for harm to this defendant was substantial.” 465 N.E.2d at 1087.
The specific intent aspect takes on a different caste in terms of a jury’s deliberation concerning proof of every requisite element of the crime.
The State contends that because an instruction was given which defined murder, the jury was sufficiently apprised that not *1306only must they find that the act of stabbing was knowing or intentional, but also that the act was a substantial step toward the knowing or intentional killing of Orange.
Even assuming that the jury was so apprised, such awareness is insufficient under the present state of the law. The State’s position must be rejected in light of Abdul-Wadood v. State (1988) Ind., 521 N.E.2d 1299. In that case the jury was given instructions very similar to those in the case before us. The jury was advised:
“To sustain the charge of attempted murder, the State must prove the following propositions:
First: That the Defendant knowingly engaged in conduct against DAVID ABEL.
Second: That the Defendant’s conduct against DAVID ABEL constituted a substantial step toward the commission of the crime of murder.” 521 N.E.2d at 1300.
Furthermore, in Abdul-Wadood, as here, the jury was given the definition of murder.
Our Supreme Court reversed the attempted murder conviction holding:
“This instruction is defective in that it fails to inform the jury that the substantial step toward the crime of murder must have been accompanied by the state of mind which is required for the crime of murder. In Smith v. State (1984), Ind., 459 N.E.2d 355 we declared the giving of this instruction to be fundamental error. See also Santana v. State (1986), Ind., 486 N.E.2d 1010. The error in the instruction creates a serious risk of wrongful conviction.” 521 N.E.2d at 1300.
Our Fourth District recently followed this holding in Armstrong v. State (1989) 4th Dist. Ind.App., 540 N.E.2d 626, trans. denied.
More recently, in Jackson v. State (1989) Ind., 544 N.E.2d 853, our Supreme Court, without citing the Abdul-Wadood decision, proceeded to follow it and the earlier decision in Smith v. State (1984) Ind., 459 N.E.2d 355. In Jackson, the Court reversed an attempted murder conviction despite an instruction which advised that the State must prove that defendant “knowingly attempted to kill.” The Court held that the instruction did not “inform the jury of the elements of attempted murder, namely that defendant with intent to kill [the victim], took a substantial step to accomplish that end.” 544 N.E.2d at 854.
The majority here seeks to distinguish Abdul-Wadood but in my view fails to do so. The majority concludes that Instruction 5 is a correct statement of law and that Instruction 4 could not have misled the jury because it merely recites the charge and further that the instructions defining murder and attempted murder advise the jury that “a specific intent to kill was required.” At 1304.
The majority opinion's conclusion seems to rest upon the fact that Instruction 7 tells the jury that conviction requires proof that the defendant acts “with culpability required for commission of [murder].” At 1304. Instruction 7 does not cure the problem.
The culpability required for murder is that the killing be knowing or intentional. I.C. 35-42-1-1 (Burns Code Ed.Supp.1990).1
It is perhaps arguable that in order to be guilty of intentionally killing, the actor must have had “the conscious objective” to kill (I.C. 35-41-2-2(a) (Burns Code Ed.Repl. 1985), i.e., a specific intent to kill as opposed to merely having a conscious objective to engage in the conduct which results in a death.
It is also possible to reason that a “knowing” killing carries with it not only knowledge that the physical act is being engaged in but also the cognitive element in terms of a knowledge of the “high probability” of the consequences which accompany the act itself. See Moser v. State (1982) 2d Dist. Ind.App., 433 N.E.2d 68.
*1307Be that as it may, with regard to criminal attempts, the State must prove that the defendant’s conduct was purposeful. Wells v. State (1990) 2d Dist. Ind.App., 555 N.E.2d 1366. And as noted in Presiding Judge Shields’ separate opinion in Wells, joined by Judge Staton:
“[T]he substantial step conduct, which must be done intentionally or knowingly in the crime of attempt, must be done with the purpose of committing the principal crime.” 555 N.E.2d at 1374.
It is therefore clear, I think, that proof that the defendant engaged in conduct knowingly or intentionally does not suffice for conviction of an attempt. With regard to attempted murder, the State must additionally prove that the conduct must have been engaged in with the purposeful intent to kill. Whether this requirement is a proof requirement in addition to the “knowing or intentional” element, or as held by Judges Shields and Staton, is a requirement embraced within the concept of “knowing or intentional,” it must nevertheless be present and the jury must be so instructed. This is precisely what the Abdul-Wadood decision holds. And it is this holding which appears to be overlooked by the majority today.
Even were I to agree that the specific intent to kill is necessarily embraced within instructions which define murder and attempt, and which advise the jury that the State must prove every essential element of the crime, such would not alter my vote to reverse this conviction. Here, the jury was not provided with the definitions of “knowingly” or “intentionally”. Accordingly, they had no frame of reference within which to engage in the sophisticated mental process called for by the majority opinion. See Abercrombie v. State (1985) Ind., 478 N.E.2d 1236.
I reiterate my view that taken as a whole, the instructions were severely inadequate and misleading as to the State’s duty to prove that when Terry “knowingly and intentionally” cut and stabbed Orange with a knife, he did so with the intent to kill Orange.
The giving of the instructions constituted fundamental error. Jackson, supra, 544 N.E.2d 853; Abdul-Wadood, supra, 521 N.E.2d 1299; Smith, supra, 459 N.E.2d 355. It was not necessary that Terry at the post-conviction stage couch the issue in terms of ineffective assistance of trial and appellate counsel. Propes v. State (1990) Ind., 550 N.E.2d 755.2
I would reverse the conviction and remand with instructions to grant a new trial.
. The instruction given which defined murder stated that the conduct must be "knowing and intentional.” (Emphasis supplied.)
. The instructions were not challenged at trial nor in the direct appeal. A question of waiver may therefore seem to be present. See Lynn v. State (1978) 268 Ind. 632, 377 N.E.2d 1357; see also Reid v. State (1988) Ind., 529 N.E.2d 1309. Our Supreme Court's unequivocal holding in Abdul-Wadood v. State (1988) Ind., 521 N.E.2d 1299, that a virtually identical instruction constituted fundamental error, mandates reversal rather than a holding by this court that Terry waived the error. See also State v. Lewis (1989) Ind., 543 N.E.2d 1116, in which our Supreme Court despite a holding adverse to defendant upon an issue in a direct appeal declined to utilize the discretionary "law of the case doctrine” and reversed because the law had changed in the interim.