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NO. COA97-1248
NORTH CAROLINA COURT OF APPEALS
Filed:                                                               20 October  1998
STATE OF NORTH CAROLINA
v.
HAMILTON JUNIOR COZART
Appeal by defendant from judgments entered  1 May  1997 by
Judge Knox V. Jenkins, Jr. in Johnston County Superior Court.
Heard in the Court of Appeals  19 August  1998.
Attorney General Michael F. Easley, by Associate Attorney
General Teresa L. Harris, for the State.
Paul Pooley for defendant.
LEWIS, Judge.
Defendant was convicted of discharging a firearm into
occupied property and attempted first-degree murder.    We find no
error.
The State's evidence, including the testimony of six
eyewitnesses, tended to show the following.    On  27 March  1996,
around  5:15 p.m., Deshawn Holley was involved in an altercation
with defendant.    Holley left and traveled to the home of his
cousin, Gennive Walden, at  511 Benton Street in Benson, where
several relatives were visiting.    Holley stayed outside on the
porch.
About ten minutes after Holley arrived, a green Bronco
driven by Terence Green pulled up outside the Walden home.




Defendant, Albert Coleman, and Jeremy Stallings got out of the
Bronco.    When Holley saw them, he grabbed a stick from someone
who was also standing on the porch.    Holley pointed the stick at
defendant and the others and told defendant if he came any
closer, Holley would hit him in the head.    Defendant then snapped
his fingers, said, "This is for you, punk m----- f-----," and
told Coleman to "get the guns."    Coleman went to the Bronco and
took out several guns.    He handed them to Stallings and
defendant.    Defendant then said, "Shoot," and the three began
firing at the porch from about twenty-five yards away.    Holley
and his relatives ran inside.    About eight rounds were fired, at
least one of which shattered a window and entered the house.
Some of the bullets passed over the heads of those on the porch,
but no one was hit.
On appeal, defendant first argues that the trial court
should have granted his motion to dismiss the attempted first-
degree murder charge for lack of sufficient evidence.    A motion
to dismiss on the ground of insufficient evidence should be
denied if there is substantial evidence of each element of the
crime, and that defendant was the perpetrator.    State v. Roddey,
110 N.C. App.  810,  812,  431 S.E.2d  245,  247  (1993).    Substantial
evidence is such relevant evidence as a reasonable mind might
find sufficient to support a conclusion.    Id.
First-degree murder is the unlawful killing of a human being
with malice and with a specific intent to kill, committed after
premeditation and deliberation.    N.C. Gen. Stat.  §  14-17  (1993);
State v. Mitchell,  288 N.C.  360,  365,  218 S.E.2d  332,  336  (1975),




death sentence vacated,  428 U.S.  904,  49 L. Ed.  2d  1210  (1976).
"Premeditation means that the act was thought out beforehand for
some length of time, however short, but no particular amount of
time is necessary for the mental process of premeditation."
State v. Conner,  335 N.C.  618,  635,  440 S.E.2d  826,  835-36
(1994).    "Deliberation means an intent to kill, carried out in a
cool state of blood, in furtherance of a fixed design for revenge
or to accomplish an unlawful purpose and not under the influence
of a violent passion, suddenly aroused by lawful or just cause or
legal provocation."    Id. at  635,  440 S.E.2d at  836.    In the
context of attempted first-degree murder, circumstances that may
tend to prove premeditation and deliberation include:                   (1) lack
of provocation by the intended victim or victims;  (2) conduct and
statements of the defendant both before and after the attempted
killing;  (3) threats made against the intended victim or victims
by the defendant; and  (4) ill will or previous difficulty between
the defendant and the intended victim or victims.    State v.
Myers,  299 N.C.  671,  677,  263 S.E.2d  768,  772  (1980).
A person "attempts" to commit a crime when he intends to
commit the crime; he performs an overt act calculated to carry
out that intent, going beyond mere preparation; and he falls
short of committing the crime.    State v. Collins,  334 N.C.  54,
60,  431 S.E.2d  188,  192  (1993).    Thus:    A person commits the
crime of attempted first-degree murder if he specifically intends
to kill another person unlawfully; he does an overt act
calculated to carry out that intent, going beyond mere
preparation; he acts with malice, premeditation, and




deliberation; and he falls short of committing the murder.
In this case, there was sufficient evidence of each element
of attempted first-degree murder and that defendant was the
perpetrator.    Defendant's intent to kill Holley with malice can
be inferred from his shooting at the porch from twenty-five yards
away and from his ordering others to shoot at the porch from this
range, particularly after telling defendant, "This is for you,
punk m----- f-----."    Defendant's premeditation and deliberation
can be inferred from the fact that defendant assaulted Holley in
his car just minutes before the shooting; that defendant sought
out Holley; that guns were on board the Bronco when it arrived at
the scene of the shooting; and that defendant snapped his fingers
and ordered his companions to get the guns and open fire.
Finally, it goes without saying that defendant's firing a gun at
Holley is an overt act, going beyond mere preparation, in
furtherance of his intent to kill Holley.    Defendant's motion to
dismiss the attempted first-degree murder charge was correctly
denied.
Next, defendant argues that the trial court should have
instructed the jury on the lesser-included offense of attempted
second-degree murder.
Second-degree murder is the unlawful killing of another
person with malice, but without premeditation and deliberation.
N.C. Gen. Stat.  §  14-17  (1993); State v. Geddie,  345 N.C.  73,  94,
478 S.E.2d  146,  156  (1996).    A person commits the crime of
attempted second-degree murder when he specifically intends to
kill another person unlawfully; he does an overt act calculated




to carry out that intent, going beyond mere preparation; he acts
with malice; and he falls short of committing the murder.
A defendant is not entitled to an instruction on second-
degree murder in addition to an instruction on first-degree
murder "[i]f the  [State's] evidence is sufficient to fully
satisfy the State's burden of proving each and every element of
the offense of murder in the first degree, including
premeditation and deliberation, and there is no evidence to
negate these elements other than defendant's denial that he
committed the offense.”    State v. Strickland,  307 N.C.  274,  293,
298 S.E.2d  645,  658  (1983), overruled in part on other grounds by
State v. Johnson,  317 N.C.  193,  344 S.E.2d  775  (1986).    The same
analysis applies to determining whether a defendant is entitled
to an instruction on attempted second-degree murder where the
jury is instructed on attempted first-degree murder.    The only
elements that distinguish attempted first-degree murder from
attempted second-degree murder are premeditation and
deliberation.
In this case, there was no evidence to contradict the
State's evidence of premeditation and deliberation.    No
instruction on attempted second-degree murder was warranted.
Defendant also argues that he was entitled to an instruction
on assault with a deadly weapon with intent to kill in violation
of N.C. Gen. Stat.  §  14-32(c)  (1993).    Defendant claims that
assault with a deadly weapon with intent to kill is a lesser-
included offense within the crime of attempted first-degree
murder.    We disagree.    Assault with a deadly weapon with intent




to kill requires proof of an element not required for attempted
first-degree murder:    the use of a deadly weapon.    It is not a
lesser-included offense of attempted first-degree murder.    See
State v. Westbrooks,  345 N.C.  43,  55,  478 S.E.2d  483,  491  (1996).
In his next assignment of error, defendant claims that the
trial court improperly limited the scope of his cross-examination
of State witness Gennive Walden.    At trial, Walden testified,
among other things, that she was not present at the time of the
shooting but arrived there about thirty minutes later.    Defendant
wanted to impeach Walden with a document purporting to be an
affidavit executed by Walden some ten months before trial.    The
purported affidavit includes a statement that Walden was present
at the time of the shooting.
At a hearing held outside the presence of the jury, Walden
testified that someone else had typed up the paper, that she did
not recall having read or having been read the final statement
before signing it, and that the paper she signed did not include
a statement that she was present when shots were fired.    The
trial court indicated that it would restrict the use of the
affidavit in cross-examination.    The reason the trial court
restricted use of the affidavit is unclear.    It appears the trial
judge believed that Gennive Walden was not, in fact, present at
the scene of the shooting, and that limiting the use of the
purported affidavit during cross-examination would prevent
perjured testimony from reaching the jury.
When the jury returned and Gennive Walden was cross-
examined, Walden admitted signing the purported affidavit.    The




trial court sustained objections to the reading of any part of
the purported affidavit, including the statement that Walden was
present at the scene of the shooting.    When defendant offered the
affidavit into evidence, apparently for impeachment purposes, the
trial court refused to allow the jury to see the statement but
allowed defendant to argue to the jury that Walden admitted
signing a statement that she was present at the time of the
shooting.
A witness is ordinarily subject to impeachment on cross-
examination through the use of prior inconsistent statements.
N.C.R. Evid.  607,  611(b),  613; State v. McKeithan,  293 N.C.  722,
730,  239 S.E.2d  254,  259  (1977).    We find no reason for
limitations placed on defendant's use of the purported affidavit
for impeachment purposes.
Nevertheless, we believe that the trial court's error was
harmless beyond a reasonable doubt.    See N.C. Gen. Stat.  §  15A-
1443  (1997).    Defendant was able to impeach Gennive Walden's
trial testimony that she was not present at the time of the
shooting by asking her about a prior inconsistent statement she
made to an investigating officer.    More important, because
Walden's testimony added very little, if anything, to the State's
case, a more extensive assault on her credibility would not have
helped the defense.
Defendant next argues that the trial court erred in refusing
to admit Gennive Walden's purported affidavit as substantive
evidence.    It is not clear from the record whether defendant
actually attempted to introduce Walden's affidavit as substantive




evidence.    Assuming that such a tender was made, the trial court
correctly refused to admit it in evidence.    As substantive
evidence, Ms. Walden's prior statement was inadmissible hearsay.
N.C.R. Evid.  801,  802.    It fell within no established exception
to the hearsay rule and was not inherently trustworthy.    See
N.C.R. Evid.  803.
Finally, defendant argues that the trial court erred by
preventing defendant, in his cross-examination of several
witnesses, from asking certain questions about recent fights
between defendant, defendant's family, and the State's witnesses.
Defendant made no offer of proof regarding what the witnesses'
responses would have been.    We thus conclude that the exclusion
of such evidence was not error.    See State v. Simpson,  314 N.C.
359,  370,  334 S.E.2d  53,  60  (1985).
No error.
Judges MARTIN, John C. and WALKER concur.

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