OPINION
With thе passage of the Appellate Courts Improvements Act of 1992, the jurisdiction of this Court has become almost completely discretionary. 1 This means that as to non-capital criminal cases, we function primarily as a law-development court, rather than as an error-correction court. Occasionally, however, a criminal case comes to our attention in which the sufficiency of the evidence to sustain the conviction is seriously in doubt. This appeal is one of those troubling cases, and, thus, we granted review principally to scrutinize the proof offered to convict the defendant of first-degree murder. As noted below, we find that proof to be lacking, and it thus becomes necessary to reduce the conviction to second-degree murder.
In addition to sufficiency of the evidence, this appeal also raises questions involving the admissibility of certain character evidence; the propriety of the trial court’s jury instruction on the inferences to be drawn from the concealment of evidence; and the validity of the sentencing procedure by which the defendant received a life sentence.
1. Factual Background
The rеcord indicates that on the day of the murder, the victim, Sam Jones, was mowing weeds along the roadside when he came upon defendant William West, also on a tractor. No one else was present at their meeting. West testified that Jones insulted and threatened him, that West then went home briefly, and that upon his return Jones attacked him with an iron bar, *147 prompting West to get off of his tractor and shoot Jones in self-defense. The state presented the testimony of several passersby, one who testified to the victim’s neighborliness in frequently mowing the roadside grass, and one who drove past the men and recalled seeing no weapon in the victim’s hand. One young girl testified that she saw the two men on their tractors from her home. No other evidence was presented of events preceding the shooting.
The evidence of events after the shooting revealed that West waited an hour and a half before calling the police. Before the police arrived, West put his tractor and trailer away, went to the grocery store, and briefly visited a friend, all without mentioning the incident. After the police arrived and arrested him, West gave them permission to search the рremises for the gun, and when they were unsuccessful in finding it, he eventually took them to the place where he had hidden it in some weeds.
The physical evidence was sparse. While in jail West was treated for a scrape on his arm that he claimed the victim had inflicted with the iron bar; however, a serologist found no blood on the bar. A medical examiner testified that a “distant gunshot wound” killed the victim and that the bullet traveled downward through the victim’s chest and abdomen, an unlikely trajectory if West was shooting from the ground. Based on the above evidence, the jury convicted West of first degree murder.
2. Sufficiency of the Evidence
The defendant was convicted under the murder statutes in effect for acts committed before November 1, 1989. The law at that time defined murder generally as the “unlawful[ ] killpng of] any reasonable creature in being, and under the peace of the state, with malice aforethought, either express or implied ...” T.C.A. § 39-2-201 (repealed 1989). Defendant was prosecuted for first-degree murder, defined in pertinent part as “[ejvery murder perpetrated by ... willful, deliberate, malicious and premeditated killing.” T.C.A. § 39-2-202 (repealed 1989). Although malice, which is the intent to do any unlawful act that will likely result in taking the life of another,
2
is an essential element of any murder, the elements of premeditation and deliberation distinguish first-degree murder from all other types of homicide. As we recently noted in
State v. Brown,
The law in Tennessee has long recognized that once the homicide has been established, it is presumed to be murder in the second degree. The state bears the burden of proof on the issue of premeditаtion and deliberation sufficient to elevate the offense to first-degree murder. (Citations omitted.)
In this case, although ample evidence indicates that the defendant maliciously killed his victim, the state failed to produce
any
evidence that the intent to kill was premeditated and deliberate. The element of premeditation requires a previously formed design or intent to kill.
McGill v. State,
The prosecution maintains that it has adequately proven premeditation and dеliberation for three reasons. First, the state asserts a theory that after arguing with the victim, West dispassionately returned to his house where he retrieved his gun for the specific purpose of killing the victim. While the state’s theory may be true, it remains only a theory, because the prosecution has no evidence to support it. No one witnessed the defendant’s retrieval of a gun, nor does any circumstantial evidence exist to support this theory. The defendant admitted to returning to his house, but insisted that he had carried his gun with him all morning. Thus, a jury would have to engage in pure speculation to conclude that the defendant had returned to his house in order to get a gun with which to shoot Jones. Although the jury is permitted to disbelieve the defendant’s testimony, it may not construct a theory based on nо evidence at all.
As additional evidence of premeditation, the state suggests that the defendant’s calmness immediately following the shooting proves that the murder was premeditated. Calmness immediately after a killing may be evidence of a cool, dispassionate, premeditated murder.
See State v. Browning,
Finally, the state claims that West’s concealment of the gun is proof of premeditation. Again, we disagree. The court in
Cagle v. State,
The state offers no other evidencе of defendant’s commission of a deliberate and premeditated murder. On these facts, we cannot uphold a conviction for first degree murder. As previously noted, in the absence of proof of deliberation and premeditation, an unlawful killing is presumed to be second degree murder.
State v. Brown,
3. Admissibility of Character Evidence
The defendant also appeals the allegedly improper admission of general reputation evidence and proof of a prior bad act. The state sought to introduce this evidence by telling the court that it would be used both to show West’s violent nature and to impeach West if he testified. The trial judge allowed the prosecutor to ask West if he considered himself to be a peaceful person and if he had ever threatened to kill a man named Jodie Copas. After West described himself as being “as peaceful as anybody else,” and denied threatening Copas, the court permitted the prosecutor to call Co-pas as a “rebuttal witness.” Copas testified that West had threatened him during an argument that occurred four to five years before the Jones murder. We conclude that Copas’s testimony on the grounds advanced at trial, was improperly admitted.
Character evidence is generally inadmissible to show conformity with a certain trait on a particular occasion. Tenn.R.Evid. 404(a);
Laird v. State,
The particular trait of truthfulness, however, is always an issue when a witness testifies. Thus, in contrast to the use of character evidence to show conformity with a trait such аs violence or peacefulness, reputation and opinion evidence is always admissible to attack a witness’s credibility. Tenn.R.Evid. 608(a). A witness may also be asked about specific examples of conduct that pertain to truthfulness. Specific instances of conduct, however, may not be proven by extrinsic evidence; the questioner is bound by the witness’s answer. Tenn. R.Evid. 608(b).
Specific examples of bad conduct may be admitted for other purposes as well. For example, when a prior bad act reveals a defendant’s motive, shows a common scheme or plan, or rebuts a defendant’s theory that the charged offense was an accident or mistake, the trial court may admit evidence of the prior bad act after holding a hearing out of the jury’s рresence. At the hearing the trial judge must weigh the probative value of the evidence against possible unfair prejudice to the defendant. Tenn.R.Evid. 404(b).
In this case, West never made an issue of his good character. Not until the state asked him on cross-examination whether he was peaceful did he indicate that he was “as peaceful as anybody else.” West had never describеd himself as a nonthreatening person before the state asked him if he had threatened Copas. The trial court clearly erred by allowing the state to attempt to show West’s propensity for violence by questioning him about his “peaceful” nature and about his prior threat.
Nor is there any validity to the prosecution’s argument at trial that the evidence was admissible to impeaсh the defendant’s credibility after he testified. The prosecution in a criminal case is not permitted to open the door to questions of an accused’s propensity for violence or peacefulness under the pretense of gathering ammunition for a credibility attack.
State v. Patton,
On appeal, the state concedes that the trial court erred in admitting Copas’s testimony on the grounds advanced at trial, but now belatedly argues that the evidence in question is admissible to prove that West’s motive for the murder was his unusually possessive attitude about his property. Although Tenn.R.Evid. 404(b) permits prior bad acts to be admitted for purposes other than showing conformity with a particular character trait, this testimony should not havе been admitted to show West’s motive for the murder. The trial court never weighed the relevance of Copas’s testimony to show motive against the danger of unfair prejudice to the defendant, especially in terms of its remoteness in time and place. The trial court must perform such an analysis after a hearing outside the jury’s presence. Without such an analysis in the record, we cannot properly review the admissibility of the evidence for the purpose of showing motive and, therefore, cannot rule that Copas’s testimony was properly admitted for this purpose.
Thus, we conclude, first, that the trial court’s introduction of character evidence showing West’s propensity for violence was highly improper under Tenn.R.Evid. 404(a). In addition, such evidence was improрerly used under the guise of the impeachment of West’s credibility. Evidence of the defendant’s threatening nature has no bearing on his truthfulness, and Copas’s testimony should have been forbidden as extrinsic evidence of a prior bad act. Finally, we cannot review the admission of this evidence to prove the defendant’s motive, because the trial court did not weigh the probative value of the evidence against the danger of unfair prejudice to the defendant.
Nevertheless, in the face of this clearly inadmissible evidence, we are forced to conclude that its admission was harmless. The proof of defendant’s malicious intent to kill was overwhelming, so that it becomes impossible to believe that the absence of Copas’s testimony would have led to an acquittal. West confessed to the killing. His attempt to conceal the weapon, his delay in calling the police, and the fact that he had only a minor wound are all facts that seriously undermine his self-defense story. The bullet’s trajectory belies the defendant’s claim that he shot the victim from the ground, and the absence of blood on the iron bar further contradicts West’s story. Moreover, еvidence of the victim’s character fails to jibe with the defendant’s description of him as an aggressive, threatening, would-be killer. In contrast to the strong evidence of West’s guilt is the relatively weak testimony of Copas. The alleged threat was remote in time, was not carried out, and was relayed by someone with an obvious grudge. The admission of this evidence does not affirmatively appear to have affected the outcome of the trial, and, therefore, we deem the error to be harmless in accordance with Tenn. R.Crim.P. 52(a).
Finally, West challenges the admission of the evidence of the victim’s good character. His challenge is meritless. The state is clearly permitted to present evidence of the victim’s good character to rebut defendant’s suggеstion that he killed the victim in self-defense. See Tenn. R.Evid. 404(a)(2).
4. Jury Instruction on Concealment of Evidence
The defendant next challenges as erroneous the jury charge that “[a]ny attempt to suppress, destroy, or conceal evidence is relevant as a circumstance from which guilt of an accused so acting, may be inferred.” The defendant argues that the instruction is not a “pattern” instruction and that it does not explain how concealment is relevant to a specific element of the offense charged. Moreover, he insists that the charge regarding the proper use of inferences was not among the pattern instructions and did not sufficiently instruct the jury how to use inferences.
We find that the trial court properly charged the jury on the conceal
*151
ment of evidence. There is no requirement limiting a trial court tо the use of “pattern instructions.” Other jurisdictions, too, find that jury instructions need not be in any particular form unless a statute states otherwise.
See
cases collected at 23A C.J.S.
Criminal Law
§ 1309;
see also Asbury v. State,
West also complains that the court erred by not instructing the jury on thе “presumption of inferences” in accordance with Tennessee Pattern Instructions § 37.19. Because the defendant failed to request this instruction, failed to object to its omission, and failed to include this specific ground in his motion for a new trial, we conclude that the matter has been waived on appeal.
5. Propriety of the Sentence
Finally, the defendant cites as reversible error the trial judge’s imposition of a life sentence in this case. Because we hold that defendant’s conviction for first-degree murder must be reversed for insufficiency of the evidence, this issue has become moot. The judgment of the Court of Criminal Appeals upholding the first-degree murder conviction is reversed, and the judgment of the trial court is modified to show the defendant’s conviction of second-degree murder and the imposition of the minimum sentence for that offense. If the state wishes to challenge the sentence, it must file an objection within 30 days, in order to effect a remand to the trial court for further proceedings on the penalty.
Notes
. 1992 Public Acts, ch. 952, §§ 1-15. Under the Act, the only direct appeal jurisdiction retained by the Court is in workers’ compensation cases. Capital cases are also reviewed automatically, but only after they have first been reviewed by the Court of Criminal Appeals for errors affecting conduct of the trial.
.
Humphreys v. State,