BEFORE ROY NOBLE LEE, PRATHER and ANDERSON
ROY NOBLE LEE, CHIEF JUSTICE, FOR THE COURT:
David Thornhill was indicted and tried in the Circuit Court of Marion County on a charge of murder. The jury found him guilty as charged and the lower court sentenced Thornhill to life imprisonment. He has appealed from that judgment and conviction and assigns six (6) errors in the trial below.
In the early morning hours of October 26, 1986, Marion County Sheriff Webbie McKenzie, asleep in his home, was awakened by a telephone call from appellant, David Thornhill, his brother-in-law. Appellant related to the sheriff that he had received a telephone call from Paul Wayne Simmons, the victim, saying that Simmons was going to appellant's home. Appellant told the sheriff that, if Simmons came to the Thornhill home" there was going to be trouble; "that he hated to wake up the sheriff, but that he thought the sheriff should know there was going to be trouble. Sheriff McKenzie looked at his watch as it glowed in the dark and he determined that the time was 2:10 a.m.
The sheriff went back to sleep, the telephone rang again, and the call was from appellant. The following telephone conversation was recounted by the sheriff:
[David] said:" Well, you can come up here. I've killed Paul Wayne Simmons. "I said," You're kidding. "He said," No, I'm not. "I said," Well, maybe he's not dead. "He says," Yes, he is. "I said," Well, I'll be there in a few minutes. "
Sheriff McKenzie got up and turned on the light. The time was 2:20 a.m. He called Detective Greg Cooper and asked Cooper to meet him at the Thornhill home. When the sheriff arrived there, he could see through the open door a body with the feet pointing toward him in the doorway and could see appellant in the room behind the body. As he went to check the body, appellant said," Ain't no use to check him, he's dead. "
Sheriff McKenzie examined the body and determined that Simmons was dead. He observed a head wound near Simmons' left temple, and a hammer in his right hand. Appellant showed the sheriff a .38-caliber pistol, saying," Here's the pistol that I shot him with laying on the table, eating table. "According to Sheriff McKenzie, appellant further told him that he had been" in the back room, the bedroom, and he heard the glass break. And he had his gun, come to the door, and then he saw Paul Wayne (Simmons) come at him with the hammer. And he says, `I shot him.
The sheriff called the dispatcher and requested that he contact one Mason Sistrunk, the district attorney's investigator and the Highway Patrol investigator and have them both come to the Thornhill home. He also called the coroner, Ed Laird, and told him to come there and further contacted the district attorney and told him about the homicide, what he had done, and asked whether or not to call the Crime Lab.
When Coroner Laird arrived on the scene, the door was open, there was glass on the porch. The sheriff, the sheriff's department investigator, appellant, and Novelyn Higganbotham, appellant's girlfriend, were there. *fn1 According to Coroner Laird, there was no glass on the soles of Simmons' boots, but there was glass on the body.
Mason Sistrunk, the district attorney's investigator, arrived at appellant's house at 3:08 a.m. The lights were on in the yard and the house. The victim's car was parked in the yard in front of the house. The lower right pane of the half-glassed front door was broken out with only a few shards remaining.
Sistrunk observed several strike marks along the wood abutting the area where the lower right hand pane had been. He thought the marks had recently been made from a hammer blow. He found Simmons' body with a hammer in the hand lying just inside the house. Sistrunk found glass all over the top of the body and on the floor beside the body. He examined the body very closely and carefully and found no glass on the bottom of Simmons' boots, even though he said it was difficult to walk at the scene without stepping on and crunching glass. There were glass fragments in the hand that held the hammer. There was a large amount of glass on the victim's shirt - around the collar and down the shirt. Sistrunk carefully checked Simmons' body for cuts and bruises and found none. He conducted an especially careful examination of Simmons' hands and found no cuts or injuries to either hand, even though there was some dried blood on the left hand and blood splatters on the right wrist.
When Sistrunk arrived on the scene, he found Thornhill dressed in camouflage trousers, a camouflage jumper or coat, and bedroom slippers. He testified that Thornhill" was talking to himself. He talked the whole time. He continued to talk. . . . He was busy telling a person to call this one, call that one, and on the telephone and he said he - this man come in on him and broke in the house on him and he shot him. And he continued to talk about this. "When asked where Simmons got the hammer, Thornhill told Sistrunk that the hammer was one that he (Thornhill) had kept out on his porch by a dog feeder box to use in opening the hard-to-open metal box.
David Wynn, investigator with the Mississippi Highway Patrol, arrived at the Thornhill house approximately ten minutes after Sistrunk had arrived. He, too, examined the body and found glass on the top of the body and in the right hand with the hammer, and he also found no cuts on either hand or arm and no glass on Simmons' boot soles. He examined the weapon Thornhill said he had used and found the cylinder closed and containing five live rounds of wadcutter ammunition and one spent hull. At 3:40 a.m. (before Simmons' body was moved), Wynn read Thornhill his Miranda rights and took a tape-recorded statement from him.
According to appellant, Simmons came to Thornhill's home about 10:00 a.m. on October 25, and they spent most of the day together. Appellant's statement indicated that he and Simmons were planning to cook steaks with Novelyn Higganbotham and another woman, but eventually wound up that evening at a party at Tim Singley's camp; that while there, Simmons" got belligerent, tried to jump on Steve Crawley, and then he started on me; "that he told Simmons to" find another ride home and pick up his car and don't come back to my house; "that Simmons got somebody to take him (Simmons) to pick up his car at the Thornhill house" but before he did, he told me what to do with it, like he'd see me a little later; "that Simmons" had done told me before he got here that he would come see me and tend to me, by a threat, and he threatened - and they'll tell you he threatened me. There were about twelve people at the party that could tell you that, and I can give you every one of them's name; "that before Simmons came back to pick up his car, Thornhill had called Sheriff McKenzie and told him," I felt like that he was going to come back and try something; "that his first call to the sheriff was made about 1:00 a.m. or 1:30 a.m.
WAS THE JURY INSTRUCTION ON MALICE AFORETHOUGHT ERRONEOUS AND THEREFORE REVERSIBLE ERROR?
The instruction S-5, the subject of this complaint, follows:
The Court instructs the Jury that while malice aforethought is a necessary ingredient to the crime of murder, that malice aforethought does not necessarily mean hatred or ill will and need not exist in the mind of the defendant for any definite time, not for hours, days or even minutes, but if there is malice aforethought and a premeditated design to kill and it exists in the mind of the defendant but for an instant
before the fatal act, this is sufficient premeditation and malice aforethought to constitute the offense of murder, unless the killing is justifiable.
The appellant cites Patterson v. State, 289 So. 2d 685 (Miss. 1974), and Bangren v. State, 196 Miss. 887, 17 So. 2d 599 (1944), for the proposition that the instruction on malice must require that the jury find that malice had preexisted the unlawful act which preceded the fatal shooting. Those cases are distinguished from the case sub judice. In Patterson, the instruction indicated that malice did not have to exist for a given length of time provided it existed" at the very moment the fatal shot was fired. "The Court made it clear that malice must pre-exist the fatal shooting. Likewise, in Bangren, the Court said:
To constitute murder, the malice must precede the unlawful act which is being attempted or committed by the person killed when the killing is done in resisting his attempt to do an unlawful act.
196 Miss. at 897, 17 So. 2d at 600.
In the case sub judice, the instruction stated that the premeditated design to kill must exist in the mind of the defendant before the fatal act, if but for an instant. Further, in Bangren, the Court held that the lower court was in error for refusing a requested manslaughter instruction when it concluded the question for the jury was whether or not the defendant used more force than reasonably appeared to be necessary in ejecting a trespasser from her home. Here, (l) no manslaughter instruction was requested, and (2) there is an issue as to whether or not Simmons was committing an unlawful act when he was shot and killed by Thornhill. The State's theory of the case sub judice was that appellant lured Simmons to his home with the deliberate design to murder him and the defense theory was that Thornhill's shooting of Simmons was justifiable homicide in response to his finding that Simmons had broken into his home and was standing in his hallway holding a hammer. Considering those two theories and the facts of this case, appellant could not have been harmed or prejudiced even with the Patterson instruction, i.e., under the State's theory, the malice would have existed long before the fatal shooting and under the defense theory, it never existed.
The assigned Error I is rejected. *fn2
WAS IT ERROR TO ADMIT A TAPE RECORDING OF THE APPELLANT, AND OTHER PERSONS, WHO WERE PRESENT ON THE
NIGHT THAT THE ALLEGED MURDER TOOK PLACE? UNDER THE PARTICULAR CIRCUMSTANCES OF THIS CASE DID THE COURT COMMIT FUNDAMENTAL ERROR BY ALLOWING THE TAPE RECORDED STATEMENT OF THE APPELLANT AND OTHERS INTO EVIDENCE?
Investigator David Wynn taped the interview and statement of appellant after advising him of his rights. The statement was an account of the activities of appellant and Simmons during the approximately sixteen (16) hours prior to the shooting. It was the primary evidence of the defense theory of the case, i.e., that the shooting was done in self-defense. The lower court conducted a lengthy and thorough suppression hearing in which the appellant did not challenge the voluntariness of the statement or the waiver of the right to remain silent or to have counsel present. At trial the defense objected to the admission of the tape was (1) because it contained statements by persons other than Thornhill, (2) because the tape was turned off at two points and there was some discussion between appellant and the investigator while the tape was off, and (3) because the defense thought that a typed transcript, though not verbatim, would be better evidence than the tape itself. The lower court made a complete and well-reasoned ruling on each objection and we are of the opinion that he did not abuse his discretion in overruling the objection and admitting the taped statement.
On appeal here, the appellant's objections to the admission of his tape-recorded statement are based on different grounds than those presented to the trial court, i.e., that he was denied the fundamental right to a fair trial because its admission (1) created a situation in which the defendant was, in effect, forced to testify (through the tape), but was deprived of his right to the Weathersby presumption; (2) allowed inadmissible hearsay evidence on the part of the defendant and others to be presented to the jury, and (3) allowed the prosecutor to obtain a conviction not on substantive evidence, but on contrived impeachment of the tape-recorded statement on collateral matters. It is elementary that different grounds than the objections presented to the trial court cannot be presented for the first time on appeal. Warren v. State, 456 So. 2d 735, 738 (Miss. 1984), Ponder v. State, 335 So. 2d 885, 886 (Miss. 1976).
Appellant's principal argument under this assignment is that, because the tape was neither a confession, an admission, or statement against interest, the tape-recorded statement is hearsay and admissible only for the purposes of impeachment. He cites no Mississippi case to support this claim. Rule 801 (d)(2)(A), Miss. R. of Evid., provides that a statement is not hearsay, if it is a party's own statement offered against him. In Jackson v. State, No. 57904 (Miss. Sup. Ct. July 6, 1989) (not yet reported), this Court held that it was proper to admit a police
officer's description of the defendant's reenactment of his version of events involved in his wife's killing. Jackson held that the reenactment was an admission (" [i]t is the accused's enacted expression of just what happened ") even though the enactment was exculpatory insofar as Jackson's version of events was believed to be true. Here, appellant's version of events is, if believed, exculpatory. A statement of a party need not be against interest when made, i.e., may have been self-serving when made. 4 Weinstein's Evidence 801 (d) (2)  (1988). See United States v. Slone, 833 F.2d 595, 601 (6th Cir. 1987).
Appellant contends that the introduction of the tape-recorded statement" in conjunction with the denial of the Weathersby presumption was clear, fundamental and highly prejudicial reversible error. "A discussion of the Weathersby rule follows under assigned Errors III and W. There is no merit to this claim.
We note that after the jury was selected in this case, counsel for appellant, in making his statement to the jury, said the following:
You will hear the Defense version of what happened out there that night. It's going to be the only accurate version because David Thornhill was the only eyewitness, the only person who really knows what happened out there that night. Now, other people might have seen what happened at this party, some of the things that happened between the time of the party and the time of the incident. But, no one saw what happened except David Thornhill.
After the taped statement was admitted into evidence, the strategy of the appellant was to rely upon the statement rather than having the appellant testify before the jury. He also obtained an instruction D-12, which told the jury:
The Court instructs the jury that it must not consider the fact that the Defendant, David Thornhill, did not testify as evidence against him, and that no inference of any kind may be drawn from the fact that the defendant did not testify in this case.
The strategy of the appellant was such that he had his cake and ate it, too.
The assigned Error II is rejected.
DID THE LOWER COURT ERR IN FAILING TO DIRECT A VERDICT, RENDER A PEREMPTORY INSTRUCTION, OR GRANT ...