
    Clinton H. PIERCE, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).
    No. 79A02-9011-CR-674.
    Court of Appeals of Indiana, Second District.
    Oct. 16, 1991.
    
      Marianne Woolbert, Woolbert & Wool-bert, Anderson, for appellant.
    Linley E. Pearson, Atty. Gen. and Cynthia L. Ploughe, Deputy Atty. Gen., Indianapolis, for appellee.
   ON REHEARING

BUCHANAN, Judge.

In our original memorandum decision, 576 N.E.2d 647, we reversed appellant-defendant Clinton Pierce's (Pierce) conviction for attempted determining, sua sponte, that the jury was not properly instructed as to the elements of attempted murder. The State petitions for rehearing and asserts that recent Indiana Supreme Court decisions obviate the need for the reversal of Pierce's conviction. So we address the State's petition to distinguish the recent Supreme Court opinions.

The facts giving rise to Pierce's attempted murder conviction reveal that on January 6, 1990, Pierce and the victim were arguing in a tavern. The owners of the bar separated the two and Pierce sat quietly for a time at one end of the bar. Pierce started to leave the tavern and told the victim and her companion that he was going to get a gun and that he would come back and shoot them both.

Pierce later returned, patted his pocket and said "I have it here." Record at 276. Pierce made comments to some of his acquaintances at the bar that he wanted "back up" and that "somebody was gonna die." Record at 395, 397. When Pierce returned to the bar, the owners instructed him not to cause trouble and he agreed. Pierce sat quietly at the end of the bar.

Pierce then left his seat, went over to the victim and her friend and asked "[which one of you two bitches want it first?" Record at 304, 378. The victim replied: "Well, I've never been first in nothing. I go first." Record at 278, 305. Pierce then produced his pistol and shot the victim in the side. Pierce turned to the victim's friend and said: "You're next. Where do you want it?" Record at 278. The bartender then demanded the gun and Pierce gave him the weapon. The police arrived and Pierce made an incriminating statement. After a jury trial, Pierce was convicted of attempted murder and sentenced to a twenty-year term of imprisonment.

Pierce's attempted murder conviction was reversed because the trial court failed to instruct the jury that "the State must prove beyond a reasonable doubt that the defendant, with the intent to kill the victim, engaged in conduct which was a substantial step toward such killing." Spradlin v. State (1991), Ind., 569 N.E.2d 948, 950. We relied on the Supreme Court's determination that such a failure constituted fundamental reversible error. See Spradlin, supra; Abdul-Wadood v. State (1988), Ind., 521 N.E.2d 1299; Smith v. State (1984), Ind., 459 N.E.2d 355.

In two recent decisions with almost identical factual and legal issues, the Supreme Court modified the fundamental error rule enunciated in Spradlin, Abdul-Wadood, and Smith. In Jackson v. State (1991), Ind., 575 N.E.2d 617, and Allen v. State (1991), Ind., 575 N.E.2d 615, the Supreme Court concluded that the failure to properly instruct the jury as to the specific "intent to kill" element of attempted murder is not necessarily fundamental reversible error.

In both Jackson and Allen, the Supreme Court focused on two factors. First, in each case, the instractions to the jury included, as an element that the State must prove, that the defendant "attemptfed] to commit the crime of murder by attempting to kill" the victim. Jackson, supra at 620; Allen, supra at 616 (emphasis supplied). The Supreme Court determined that, while the element of "intent to kill" was lacking in the instruction, the instruetion was sufficient to convey the State's burden to prove intent to kill such that giving the instruction was not fundamental error.

The other factor on which the Supreme Court focused is that in each case the defendant's intent was not an issue, but rather the issue at the center of each trial was the identity of the perpetrator of the erimes. The Supreme Court's holding that the instructions did not constitute fundamental error was grounded solely on those two factors.

In sharp contrast to the facts considered by the Supreme Court, the instructions given to Pierce's jury did not contain the additional "by attempting to kill" language found in both Jackson and Allen. Rather, the trial court merely instructed the jury as to the elements of attempt and the elements of murder. Record at 85, 86. Further, Pierce's intent was the primary issue at his trial. Picrce argued that he was too intoxicated to form the requisite intent. Therefore, because none of the factors relied upon by the Supreme Court in Jackson and Allen are present here, our original decision is still mandated by Spradlin, Abdul-Wadood and Smith.

Despite the State's argument to the contrary, we do not read the Supreme Court's decisions in Jackson and Allen as overruling Spradlin, Abdul-Wadood, and Smith. It would appear the Supreme Court was only modifying its previous rule concerning furdamental error in attempted murder instructions in Jackson and Allen. So we deny the State's petition for rehearing.

CHEZEM, J., concurs.

SULLIVAN, J., concurs with opinion.

SULLIVAN, Judge,

concurring.

While I concur in the majority's opinion upon rehearing to the effect that it denies the Petition for Rehearing, I nevertheless must disagree with its analysis of Jackson v. State (1991) Ind., 575 N.E.2d 617, and Allen v. State (1991) Ind., 575 N.E.2d 615. To be sure, there is language in those cases which carries an implication that no error at all was occasioned by the giving of the instructions there involved, because the instruction given "sufficiently conveyed the state's burden to prove intent to kill." Allen, supra, 575 N.E.2d at 617. Notwithstanding such language, the court in Allen and in Jackson nevertheless clearly held that it was error to give the instruction but it was not such fundamental error as to require reversal absent an objection.

It is possible that the import of both the Jackson and Allen cases are that Spradlin v. State (1991) Ind., 569 N.E.2d 948, Abdul-Wadood v. State (1988) Ind., 521 N.E.2d 1299, and Smith v. State (1984) Ind., 459 N.E.2d 355, are to be given prospective application only and that the more recent cases provide a cautionary directive to trial courts to give appropriate "with intent to kill" instructions in attempted murder cases.

I, otherwise, fully concur in the Opinion upon Rehearing. 
      
      . Ind.Code 35-41-5-1 and Ind.Code 35-42-1-1.
     