






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
                                        Indianapolis, Indiana





                                   IN THE


                          SUPREME COURT OF INDIANA



DEMARIO L. BANKS,                       )
                                        )
      Appellant-Defendant,              )
                                        )    Supreme Court Cause Number
            v.                          )    82S00-9912-CR-710
                                        )
STATE OF INDIANA,                       )
                                        )
      Appellee-Plaintiff.                    )


                  APPEAL FROM THE VANDERBURGH CIRCUIT COURT
                     The Honorable Carl A. Heldt, Judge
                         Cause No.  82C01-9901-CF-19


                              ON DIRECT APPEAL


                              January 24, 2002


RUCKER, Justice
      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.

                                    Facts

      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 McKnight’s 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 McKnight’s 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.

                                 Discussion

                                     I.
      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.[1]  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?


      [Morris:]   Yes.


      [Prosecutor:]    Tell me what everybody said during that discussion.


      [Morris:]   Basically we was just talking about hitting a lick  so  we
                 could pay Demario’s 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] there’s 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.[2]  In this appeal, Banks contends the trial court erred in  denying
his motion for mistrial because the testimony  violated  the  trial  court’s
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 court’s  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.
                                     II.
      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.
                                    III.
      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 wasn’t right  to  make
a statement against him basically only just that.”  R. at 527.[3]
      Banks’ argument that Morris’ testimony was inadmissible as hearsay  is
incorrect.  A party’s 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.

                                 Conclusion


      The judgment of the trial court is affirmed.

SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.

-----------------------
      [1]  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.

      [2]  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.

      [3]  The record shows that after his arrest, Morris gave  a  statement
to police implicating Banks.  R. at 454-56.

