However, the Smith requirement for an instruction regarding the necessity of specific intent to kill to sustain a conviction for attempted murder is applicable to cases reviewed in post-conviction proceedings. Tacy v. State (1994), Ind. App., 641 N.E.2d 57, 59-62; see Brown v. State (1992), Ind. App., 587 N.E.2d 693, 699 (finding Smith to apply retroactively); cf. Hill v. State (1993), Ind., 615 N.E.2d 97, 99 (specific intent requirement applies at trial and will be applied on review of instructions on attempted murder). In its appellate brief, the State asks this Court to abandon the line of cases beginning with Smith, including Spradlin v. State (1991), Ind., 569 N.E.2d 948 (reiterating the rule in Smith).
Because this issue was decided in Hunter's direct appeal, it is res judicata, and it is not subject to consideration for post-conviction relief by this court. See Grey v. State (1990), Ind., 553 N.E.2d 1196, 1199-1200, reh'g denied; Tacy v. State (1994), Ind. App., 641 N.E.2d 57, 63, trans. denied. Affirmed.