Cite as: 510 U. S. 222 (1994)
Stevens, J., dissenting
The Court also seeks support from the trial court's Instruction No. 8, which informed the jury that to sustain the charge of murder, the State had to prove intent. Ante, at 234.6 Most naturally read, however, that instruction referred only to the knowing or intentional murder charge in Count I. It did not, as the Court's opinion suggests, expressly refer to "both" felony and intentional murder, ibid.; on the contrary, it made no mention of felony murder. In Indiana, intent to kill is not an element of felony murder. Accordingly, the definition of murder in Instruction No. 4 clearly indicated that a person commits murder either when he knowingly or intentionally kills someone or when he "[k]ills another human being while committing or attempting to commit arson, burglary, child molesting, criminal deviate conduct, kidnapping, rape or robbery." App. 21; Ind. Code § 35-42-2-1 (Supp. 1978). If Instruction No. 8 were intended to refer to the felony murder charges in Counts II and III, it plainly misstated the law. The instruction did accurately state the elements of the knowing or intentional murder charge in Count I, however. It is worth noting that not one of the seven opinions that various members of the Indiana Supreme Court wrote at different stages of this litigation construed that instruction as applicable to Counts II and III.7
6 Specifically, Instruction No. 8 provided that "to sustain the charge of murder," the State must prove (1) that "the defendant engaged in the conduct which caused the death of Laura Luebbehusen," and (2) that "when the defendant did so, he knew the conduct would or intended the conduct to cause the death of Laura Luebbehusen." App. 22-23. The instruction further stated that "[i]f you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, and that the defendant was not insane at the time of the murder, then you should find the defendant guilty." Id., at 23.
7 If, as the Court assumes, the jury believed "that it was required to find a knowing or intentional killing in order to convict Schiro on any of the three murder counts," ante, at 235, there is no rational explanation for its failure to return a guilty verdict for intentional murder (Count I) if it
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