ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
VERDELSKI V. MILLER KAREN M. FREEMAN-WILSON
Evansville, Indiana Attorney General of Indiana
ARTHUR THADDEUS PERRY
Deputy Attorney General
SUPREME COURT OF INDIANA
DEMARIO L. BANKS, )
) Supreme Court Cause Number
v. ) 82S00-9912-CR-710
STATE OF INDIANA, )
APPEAL FROM THE VANDERBURGH CIRCUIT COURT
The Honorable Carl A. Heldt, Judge
Cause No. 82C01-9901-CF-19
ON DIRECT APPEAL
January 24, 2002
A jury convicted Demario Banks of murder, felony murder, and robbery in the
shooting death of Jakiya McKnight. In this direct appeal, Banks raises four
issues for our review which we consolidate and rephrase as: (1) did
the trial court err in denying Banks motion for mistrial; (2) did the
trial court err in excluding evidence of a witness prior conviction; and (3)
did the trial court err by allowing hearsay testimony into evidence. Finding
no error, we affirm.
The facts most favorable to the verdict show that Banks and James Morris
decided to rob known drug dealer McKnight. In the early morning hours
of December 20, 1998, they went to McKnights home and engaged him in
a brief conversation. Suddenly producing a 9mm handgun, Banks told McKnight to
lie on the floor and demanded to know where he kept his drugs
and money. In the meantime, Morris proceeded to ransack the house finding
a large quantity of cocaine and between five and eight thousand dollars in
cash. While conducting his search, Morris heard a gun shot. Banks
later told Morris that he had accidentally shot McKnight. The two removed
jewelry from McKnights body and fled the scene with jewelry, money, and drugs.
A later autopsy revealed McKnight died as a result of a gunshot
wound to the chest.
Banks was subsequently arrested and charged with murder, robbery, and felony murder.
After a trial by jury, he was convicted as charged. The trial
court did not enter a judgment of conviction on the murder and robbery
convictions. Finding they merged into the conviction for felony murder, the trial
court entered judgment and sentenced Banks on that conviction only to a term
of sixty years. This appeal followed. Additional facts are set forth
below where relevant.
Banks first contends the trial court erred in denying his motion for mistrial.
The facts are these. At the time he committed the instant
offenses, Banks was on bond for an unrelated carjacking charge. At trial,
the State called Morris to the stand.
See footnote After a series of questions
and answers, the following exchanged occurred:
[Prosecutor:] So you, Vonda and [Dem]ario are discussing hitting a lick or going to
rob Jakiya, is that right?
[Prosecutor:] Tell me what everybody said during that discussion.
[Morris:] Basically we was just talking about hitting a lick so we could pay
Demarios lawyer  to get him six do three on his carjacking case.
R. at 421. At that point, Banks objected and requested to be
heard outside the presence of the jury. The jury was excused, and
Banks moved for mistrial on the grounds that the testimony concerning his alleged
bad act was highly prejudicial, [and] theres no way I can cure it
. . . . R. at 422. The trial court denied
the motion. However, upon Banks request, the trial court admonished the jury
to disregard the witness response. R. at 425-26.See footnote In this appeal,
Banks contends the trial court erred in denying his motion for mistrial because
the testimony violated the trial courts grant of his earlier motion in limine.
We first observe that predicating error on the admission of evidence that had
been excluded preliminarily by an order in limine presents nothing for review.
Rather, if the trial court errs by admitting evidence, the exclusion of which
was sought by a motion in limine, then the error is in admitting
the evidence in violation of an evidentiary rule, not in rescinding a previous
order in limine.
Francis v.State, 758 N.E.2d, 528, 533(Ind. 2001). In
this case, we interpret Banks argument on appeal as a claim that the
trial court erred in denying his motion for mistrial because the testimony concerning
his alleged prior bad act was inadmissible under Indiana Evidence Rule 404(b).
A mistrial is an extreme remedy that is warranted only when less severe
remedies will not satisfactorily correct the error. Warren v. State, 725 N.E.2d
828, 833 (Ind. 2000). A timely and accurate admonition is presumed to
cure any error in the admission of evidence. Heavrin v. State, 675
N.E.2d 1075, 1084 (Ind. 1996) (quotation omitted). In this case, at Banks
request, the trial court admonished the jury to disregard the witness remark concerning
Banks unrelated criminal act. Banks does not explain why the trial courts
admonishment did not suffice in this case. Indeed, in his brief to
this Court, he fails to mention the admonishment at all. We conclude
Banks is entitled to no relief on this issue. The trial court
properly denied his motion for mistrial.
Banks next complains the trial court erred in denying him the opportunity to
introduce details of Morris prior conviction. The facts supporting this allegation of
error show that during cross-examination, Banks established that Morris had once been convicted
of robbery. He then proceeded to question Morris about the details of
the conviction. The State objected, and after argument outside the presence of
the jury, the trial court sustained the objection. According to Banks he
should have been allowed to pursue this line of questioning to show that
Morris had a propensity of recruiting others to assist him in committing crimes.
Banks cites no authority for this proposition, and our own research reveals
none. Rather, although a witness may be cross-examined about prior criminal convictions
for certain infamous crimes and crimes involving dishonesty or false statement, Ind. Evidence
Rule 609(a), the witness may be questioned only about whether he or she
had been convicted of a particular crime. Hobbs v. State, 548 N.E.2d
164, 168 (Ind. 1990). Generally, the details may not be explored.
Id. We find no error here.
For his last allegation of error, Banks complains the trial court improperly allowed
inadmissible hearsay into evidence. The facts in support of this allegation show
that during the cross-examination of Morris, counsel for Banks introduced into evidence two
letters Morris had sent Banks while both were in custody awaiting trial.
R. at 502, 506. Counsel questioned Morris extensively about the contents of
the letters and the meaning and context of certain words and phrases.
On redirect examination by the State, Morris testified that the letters he sent
Banks were in response to letters that Banks had written him. By
the time of trial, those letters had been thrown away. When asked
by the State what Banks had said in those discarded writings, counsel objected
on grounds of hearsay and improper foundation. R. at 523-26. The
trial court overruled the objection, and Morris continued as follows: He was
asking me about why I made a statement against, that uh, you know,
it wasnt right to make a statement against him basically only just that.
R. at 527.
Banks argument that Morris testimony was inadmissible as hearsay is incorrect. A
partys own statement offered against that party is not hearsay. Evid.R. 801(d)(2);
see also Jones v. State, 510 N.E.2d 1352, 1353 (Ind. 1987) (referring to
the admission of a party opponent as an exception to the hearsay rule).
The trial court did not err by allowing the testimony into evidence.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
Morris also was charged with murder, felony murder, and robbery.
His trial was scheduled to begin within a week to ten days after
Banks trial concluded. R. at 411.
Footnote: Specifically, the trial court said:
Ladies and gentlemen of the jury, you are admonished to disregard the last
testimony of this witness with regard to any other charges the defendant may
have now, or may have ever had for any criminal acts . .
. not related to this case. You must not allow this matter,
these statements to influence your decision in this case. You must not
discuss or mention this matter in your discussions with one another. You
must base your verdict solely upon the . . . proper evidence in
this case, and the final instructions to the Court as to the law
in this case.
R. at 425-26.
Footnote: The record shows that after his arrest, Morris gave a statement
to police implicating Banks. R. at 454-56.