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THE ACTION. 
RENDERED: JANUARY 18, 2024

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2022-SC-0227-MR

ISMAIL ALI APPELLANT 

ON APPEAL FROM JEFFERSON CIRCUIT COURT

V. HONORABLE BRIAN C. EDWARDS, JUDGE

NOS. 19-CR-002741, 21-CR-000630 & 21-CR-000806

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

A Jefferson Circuit jury found Ismail Ali guilty of assault in the second 

degree, convicted felon in possession of a handgun, wanton endangerment in 

the first degree, complicity to wanton endangerment in the first degree, and 

being a persistent felony offender in the second degree. The jury recommended 

a sentence of thirty years, but the trial court imposed a sentence of twenty 

years pursuant to KRS1 532.110(1)(c). Ali appeals as matter of right2 claiming 

the trial court erred when it admitted evidence that Ali was on HIP3 and

overruled several Batson challenges from the defendant. Upon review, this 

1 Kentucky Revised Statutes.

2 Ky. Const. § 110(2)(b).

3 Home Incarceration Program.
2

Court finds the trial court did not abuse its discretion by admitting the KRE 

404(b) evidence. Nor do we find that the trial court erred when it permitted the

Commonwealth to strike several jurors finding no violation of Batson v. 

Kentucky, 476 U.S. 79 (1986). Therefore, the judgment of the Jefferson Circuit 

Court is affirmed.

I. FACTS AND PROCEDURAL HISTORY

Jacqueline Long lived on Rowan Street with her boyfriend and her twoyear-old daughter, J.P. On September 26, 2019, Long was at home with her 

daughter, while her boyfriend was at work. She noticed that there was a group 

of people sitting outside on a milkcrate and recognized one of them as Ali. Long 

recognized Ali because he once lived near her mother. Long noticed he was 

wearing a white tank top and described him as tall and heavy set. She 

recognized a few others in the group but did not know their names.

Long became concerned because she knew that this group of individuals 

fought a lot, so she called her boyfriend’s mother who agreed to come over. As

she was standing by her front door waiting for her boyfriend’s mother to arrive,

she heard gunshots and J.P. started to scream. She noticed there was blood 

on J.P.’s stomach from a stray bullet, so she called an ambulance. As Long 

retreated from the front door she heard additional shots.

She testified that Ali was shooting from one end of her truck which was 

parked directly in front of her house. Someone else down the street was 

shooting also but she was not able to identify him. Once the police and EMS4

4 Emergency Medical Services.
3

arrived they took Long and J.P. to the hospital via ambulance. J.P. underwent 

some minor surgery to clean the wound and was able to recover.

Detective Anthony Summerall was the lead detective on the case. He 

interviewed Ali about the incident. Ali told Detective Summerall that he went to 

Rowan Street to protect his sister but denied possessing a gun or hurting

anyone. He claimed he was only trying to stop the fight. Ali admitted that he 

was wearing a white tank top t-shirt. Ali was indicted on assault in the firstdegree, wanton endangerment in the first-degree, possession of a handgun by a 

convicted felon, complicity to wanton endangerment in the first-degree, and 

being a persistent felony offender in the second degree.5

On January 6, 2020, prior to trial, the Commonwealth provided notice 

under KRE6 404(c) that it intended to introduce evidence obtained from Ali’s 

participation in the HIP program under KRE 404(b). Specifically, the 

Commonwealth sought to introduce evidence of his location from his GPS ankle 

monitor that showed Ali was there on Rowan Street at the time of the shooting. 

The Commonwealth disavowed any intention to introduce evidence regarding 

when or why Ali was placed on HIP. On February 9, 2022, Ali filed a motion to 

exclude the HIP location data. The trial court ruled in favor of the 

Commonwealth but forbade any mention of why Ali was on the HIP program.

5 These charges were initially filed in three separate indictments. The Commonwealth 

filed a motion to consolidate for trial, which the trial court granted.

6 Kentucky Rules of Evidence.
4

During jury selection, the Commonwealth exercised preemptory

challenges on three of the remaining five black jurors. Ali challenged the 

Commonwealth’s strikes under Batson. The trial court considered this 

objection and inquired of the Commonwealth whether there was a race-neutral 

reason for its preemptory strikes. The Commonwealth offered several reasons 

which the trial court accepted. Further facts will be adduced as necessary, so

we now address the merits of the appeal.

II. ANALYSIS

As noted above, Ali argues that the trial court erred when it allowed the

Commonwealth to admit testimony regarding the GPS data obtained through 

Ali’s participation of the HIP program. Ali claims that this evidence should have 

been excluded under KRE 404(b), and by admitting it, the trial court deprived 

Ali of the right to a fair trial.

Evidentiary rulings by the trial court are reviewed for abuse of 

discretion. Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007). The 

test for abuse of discretion is whether the trial court’s ruling was arbitrary, 

unfair, unreasonable or unsupported by sound legal principles. Commonwealth 

v. English, 993 S.W.2d 941, 945 (Ky. 1999).

Ali argues that under our precedent the GPS data obtained through his 

participation in the HIP program is not relevant, had minimal probative value, 

was unduly prejudicial, and unnecessarily cumulative. KRE 404(b) states:

(b) Other crimes, wrongs, or acts. Evidence of other crimes, 

wrongs, or acts is not admissible to prove the character of a person 

in order to show action in conformity therewith. It may, however, 

be admissible:
5

(1) If offered for some other purpose, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or 

absence of mistake or accident; or

(2) If so inextricably intertwined with other evidence essential to 

the case that separation of the two (2) could not be accomplished 

without serious adverse effect on the offering party.

Although the trial court admitted this evidence under KRE 404(b)(1) in 

order to prove Ali’s identity and his opportunity to commit the offense, we 

believe it is more appropriate to analyze this issue under KRE 404(b)(2). As an 

appellate court, we may affirm a lower court ruling for any reason supported by 

the record. Commonwealth v. Mitchell, 610 S.W.3d 263, 271 (Ky. 2020).

Therefore, we will look to see if Ali’s status on HIP is inextricably intertwined 

with the GPS data and whether it was possible to exclude the data without a 

serious adverse effect on the offering party. 

KRE 404(b)(2) allows the prosecution to “present a complete, 

unfragmented picture of the crime and investigation.” Adkins v.

Commonwealth, 96 S.W.3d 779, 793 (Ky. 2003) (citing Robert G. Lawson, 

Kentucky Evidence Law Handbook § 2.25 at 96 (3d ed. Michie 1993)). In Webb 

v. Commonwealth, 387 S.W.3d 319, 326 (Ky. 2012), we held that:

One of the accepted bases for the admissibility of evidence of other 

crimes arises when such evidence “furnishes part of the context of 

the crime” or is necessary to a “full presentation” of the case, or is 

so intimately connected with and explanatory of the crime charged 

against the defendant and is so much a part of the setting of the 

case and its “environment” that its proof is appropriate in order “to 

complete the story of the crime on trial by proving its immediate 

context or the ‘res gestae’ ” or “the uncharged offense is ‘so linked 

together in point of time and circumstances with the crime charged 
6

that one cannot be fully shown without proving the other....’ [and 

is thus] part of the res gestae of the crime charged.”

Id. (citing United States v. Masters, 622 F.2d 83, 86 (4th Cir. 1980)). This Court 

has affirmed a trial court’s admission of evidence that showed there were two 

outstanding warrants of arrest for the defendant in Kerr v. Commonwealth, 400 

S.W.3d 250, 254 (Ky. 2013). We held this admissible under KRE 404(b)(2) 

because:

[T]he existence of the arrest warrants was inextricably intertwined 

with the police surveillance of the Pinehurst Lodge and with Kerr's 

initial arrest. “KRE 404(b)(2) allows the Commonwealth to present 

a complete, unfragmented picture of the crime and investigation[.]”

Id. (quoting Adkins v. Commonwealth, 96 S.W.3d 779, 793 (Ky. 2003)). In a 

case with very similar facts to the present one, the Commonwealth cites an 

unpublished case from the Court of Appeals upholding the trial court’s decision 

to allow GPS data from the defendant’s participation in a HIP program. Gay v. 

Commonwealth, No. 2014-CA-001247-MR, 2015 WL 5781272 (Ky. App. Oct. 2, 

2015). The Court of Appeals reasoned that:

The question for our consideration, then, is whether the evidence 

of Gay's ankle monitor was offered from some purpose other than 

proving prior bad acts, and/or was inextricably intertwined with 

admissible evidence. We must answer this question in the 

affirmative. The record demonstrates that the evidence at issue 

was not tendered for the direct or indirect purpose of proving that 

Gay had engaged in prior bad acts. Rather, the testimony was 

offered for the sole purpose of demonstrating that Gay was present 

at Kloiber's residence at the time Kloiber was allegedly robbed. The 

ankle monitor contained a GPS tracking device, and this device 

was used to bolster the Commonwealth's assertion that Gay was 

present at Kloiber's house when the crime was committed.
7

Id. at *2. We find this reasoning persuasive. Ali’s location during the shooting 

was an important fact the Commonwealth needed to prove beyond a reasonable 

doubt in order to convict Ali.

Of course, as this Court held in Ordway v. Commonwealth, when 

deciding on the admissibility on KRE 404(b)(2) evidence, even if it is otherwise 

admissible, trial courts should undertake a KRE 403 analysis. 391 S.W.3d 762, 

791 (Ky. 2013). KRE 403 states:

Although relevant, evidence may be excluded if its probative value 

is substantially outweighed by the danger of undue prejudice, 

confusion of the issues, or misleading the jury, or by 

considerations of undue delay, or needless presentation of 

cumulative evidence.

KRE 403 does not, however, “offer protection against evidence that is merely 

prejudicial in the sense that it is detrimental to a party's case.” Webb, 387 

S.W.3d at 326 (citing Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir.1980); Brazos 

River Auth. v. GE Ionics, Inc., 469 F.3d 416, 427 (5th Cir.2006)).

One fact that neither party mentions in their briefs is that Ali stipulated 

to being a convicted felon, a vital element in the charge of convicted felon in 

possession of a handgun. It is extremely difficult to imagine that the jury would 

attach that much significance to Ali being on HIP in light of Ali’s status as an

admitted felon. Given that context, the probative value of Ali’s location is not 

outweighed by the prejudicial import of his HIP status.

Additionally, Ali argues that since he admitted that he was present 

during the police interview, his admission rendered the GPS data superfluous. 

At trial, the Commonwealth played surveillance video from Long’s residence in 
8

addition to video captured on a cell phone of the incident. Both Long and 

Detective Summerall identified Ali for the jury, but upon review of the record, 

neither video is visible. So, Ali’s argument that the GPS data was unnecessarily 

cumulative under Hall v. Commonwealth is impossible for this Court to 

evaluate. 468 S.W.3d 814, 824 (Ky. 2015).

As such, we cannot accept Ali’s argument that the Commonwealth must 

discard its most reliable evidence at trial because it corroborates other 

testimony. Therefore, we conclude that the trial court did not abuse its 

discretion when it allowed the introduction of this evidence.

Ali also contends that evidence pertaining to his HIP status violates this 

Court’s prohibition of shackling defendants or displaying defendants wearing 

“badges of custody” at trial. Deal v. Commonwealth, 607 S.W.3d 652, 667

(Ky. 2020). However, Deal is inapplicable here. Deal prohibits visual displays of

custody at trial that could lead a jury to conclude that some official 

determination has been made as to the defendant’s guilt or innocence. “One 

accused of a crime is entitled to have his guilt or innocence determined solely 

on the basis of the evidence introduced at trial, and not on grounds of official 

suspicion, indictment, continued custody, or other circumstances not adduced 

as proof at trial.” Id. at 659 (quoting Holbrook v. Flynn, 475 U.S. 560, 567

(1986)). Here, Ali’s HIP status was incidental and unavoidable due to the 

Commonwealth’s legitimate need to present the whole facts of its case. Here,

there were no visual reminders of Ali’s custodial status at trial and the trial 

court was careful not to allow any evidence of why Ali was on HIP.
9

Ali’s Batson Challenges.

Ali’s final argument is that the trial court erred when it allowed the 

Commonwealth to use its preemptory strikes to eliminate three black jurors 

claiming a violation of Batson v. Kentucky, 476 U.S. 79 (1986). In Batson, the 

United States Supreme Court held that it was a violation of the equal 

protection clause of the Fourteenth Amendment for a “prosecutor to challenge 

potential jurors solely on account of their race or on the assumption that black 

jurors as a group will be unable impartially to consider the State's case against 

a black defendant.” Id. at 89. When evaluating claims under Batson, this Court 

must determine whether:

First, the defendant must make a prima facie showing of racial 

bias for the peremptory challenge. Second, if the requisite showing 

has been made, the burden shifts to the Commonwealth to 

articulate “clear and reasonably specific” race-neutral reasons for 

its use of a peremptory challenge. . . . Finally, the trial court has 

the duty to evaluate the credibility of the proffered reasons and 

determine if the defendant has established purposeful

discrimination.

Washington v. Commonwealth, 34 S.W.3d 376, 379 (Ky. 2000). A trial court’s 

determination on Batson challenges will not be overturned on appeal unless 

they are clearly erroneous. Id. at 380.

After Ali successfully made a prima facie challenge to the

Commonwealth’s preemptory strikes against three of the remaining five black 

members of the panel, the burden shifted to the Commonwealth to present 

“clear and reasonably race neutral reasons” for its challenges. Under Gray v. 

Commonwealth, this Court has held that “[u]nless a discriminatory intent is 
10

inherent in the prosecutor’s explanation, the reason offered will be deemed 

race-neutral.” 203 S.W.3d 679, 691 (Ky. 2006) (quoting Hernandez v. New 

York, 500 U.S. 352, 360 (1991)). But a

judge cannot merely accept the reasons proffered at face value, but 

must evaluate those reasons as he or she would weigh any 

disputed fact. In order to permit the questioned challenge, the trial 

judge must conclude that the proffered reasons are, first, neutral 

and reasonable, and second, not a pretext. These two requirements 

are necessary to demonstrate “clear and reasonably specific. . . .

legitimate reasons.”

Washington, 34 S.W.3d at 379 (quoting Wright v. State, 586 So.2d 1024, 1028 

(Fla. 1991)).

Once the Commonwealth offers its race-neutral explanation for the 

strikes, the trial court is tasked with evaluating the credibility of the proffered 

explanations and determines whether the defendant has shown purposeful 

discrimination. Some of the factors the trial court should consider are “side-byside comparisons of black prospective jurors who were struck and white 

prospective jurors who were not struck in the case” and if a prosecutor 

misrepresents “the record when defending the strikes during the Batson

hearing[.]” Flowers v. Mississippi, 139 S. Ct. 2228, 2243 (2019).

Here, Ali asserts that the Commonwealth misrepresented the record 

defending the strikes against prospective jurors 2904582 and 2904619. Hence, 

Ali claims the trial court’s decision to accept the Commonwealth’s explanation 

was clearly erroneous and should be grounds for reversal.
11

Juror 2904582

The reason the Commonwealth gave for striking Juror 2904582 was the

juror’s response during voir dire to a question the defense posed to the panel. 

Ali asked what rights are important to people and “what else is in the Bill of 

Rights, what are other important rights that we think about a lot?” Juror 

2904582 responded with “the right to bear arms.” When the trial court pressed 

the Commonwealth on why it struck this particular juror, the Commonwealth

stated that he “responded to the question about constitutional things by 

offering up that he believed in the right to bear arms under the Second 

Amendment.” And that since one of the charges Ali faced was being a convicted 

felon in possession of a handgun the Commonwealth expressed concern that 

people that have strong views on the Second Amendment “don’t even believe it 

should be a crime.”

Ali claims the Commonwealth mischaracterized the record when it

implied that Juror 2904582 expressed that he personally thought that the 

Second Amendment was important to him, instead of people generally. While it 

is true that the juror did not say “the right to bear arms is important to me 

personally,” we believe it is a reasonable inference the Commonwealth could 

make and therefore cannot conclude that the trial court’s decision was clearly 

erroneous.
12

Juror 2904619

Ali also claims that the Commonwealth mischaracterized the record

pertaining to the questioning of this juror. During voir dire Ali asked, “do police 

always get it right?” The following colloquy occurred.

Juror: I mean, people make mistakes.

Defense Counsel: Okay

Juror: And if it’s dark outside, people’s features can 

look different. And I think sometimes people get 

convicted of the wrong crime. You know, if they wasn’t 

there, or if see―if something might look different than 

what they really saw.

Defense Counsel: Right.

Juror: It happen.

Defense counsel: And so just because a police might 

testify this happened or I know this is true, does that 

mean, does that make it―does that mean that it’s true? 

Because he said it?

Juror: Not always.

When pressed by the trial court to offer a race neutral explanation, the 

Commonwealth quoted the juror’s response as “it was common to be 

misidentified based on race. . . . and I’m sure he was talking about his own 

race at that time.” As noted above, the trial court’s determination of a Batson 

challenge is a three-part test. Here at step two, “all that is required is that a 

prosecutor's articulated reason for exercising a peremptory challenge be raceneutral on its face.” Commonwealth v. Coker, 241 S.W.3d 305, 307 (Ky. 2007)

(citing Hernandez v. New York, 500 U.S. 352, 365 (1991)). “Unless a 

discriminatory intent is inherent in the prosecutor's explanation, the reason 
13

offered will be deemed race-neutral.” Gray v. Commonwealth, 203 S.W.3d 679, 

690–91 (Ky. 2006), (quoting Hernandez v. New York, 500 U.S. at 360).

Upon our review of the record, it is extremely difficult to determine what 

the juror said. In fact, in Appellant’s brief he was unable to transcribe the 

colloquy. It appears that the juror simply expressed a healthy skepticism over 

the reliability of eye-witness identification. And while the Commonwealth’s

explanation to the trial court could be said to mischaracterize what the juror 

stated, it is also within the realm of possibility that this was an honest mistake. 

As the Commonwealth pointed out when arguing for its challenges, it

also moved to strike a white juror for a similar response to the question “do 

police always get it right?” The Commonwealth’s case relied on eyewitness 

identification both from lay witnesses and from police officers. Both juror’s 

skepticism toward both forms of evidence are sufficient reasons for the 

Commonwealth to peremptorily strike them and when the Commonwealth 

struck both, it gives credence to the Commonwealth’s position that this juror 

was struck, not because the Commonwealth had discriminatory intent, but 

because the Commonwealth believed the juror would have bias against its 

case. Here we must remind ourselves of the extremely deferential nature of this 

Court’s review on Batson challenges. As we stated in Gray:

Because the trial court is the best “judge” of the Commonwealth's 

motives in exercising its peremptory strikes, great deference is 

given to the court's ruling. See Wells v. Commonwealth, 892 

S.W.2d 299, 303 (Ky.1995) (the trial court is in the “best position” 

to determine the true intent behind the Commonwealth's 

peremptory challenges); Snodgrass, 831 S.W.2d at 179 (the trial 

court may “accept at face value” the explanation given by the 
14

prosecutor for his strikes, depending on his “demeanor and 

credibility). The trial court's decision on the ultimate question of 

discriminatory intent represents a finding of fact of the sort 

accorded great deference,” Wells, 892 S.W.2d at 303, and must be 

accepted unless they are clearly erroneous. Stanford v. 

Commonwealth, 793 S.W.2d 112, 114 (Ky.1990).

Gray, 203 S.W.3d at 691. Here the trial court was in the best position to 

evaluate the juror’s statements and the Commonwealth’s response to them.

While the Commonwealth’s response does not appear to be racially neutral 

because the juror’s race was alluded to, the reason it gave was not inherently

discriminatory. The Commonwealth struck him because it thought he would be 

less inclined to believe the testimony of eyewitnesses when they identified Ali as 

the perpetrator. As such, this Court cannot say that the trial court’s findings 

were clearly erroneous when it allowed the Commonwealth to strike Juror

2904619.

Juror 2904448

During voir dire, the Commonwealth asked the panel if anyone close to 

them had ever been arrested or charged with a crime. Juror 2904448 raised 

her hand and answered in the affirmative along with four others. This juror

stated that her nephew was ultimately convicted of robbery in Jefferson County

and was sent to prison. The Commonwealth struck this juror but did not strike

the four other white jurors who stated that they had been charged with a crime 

and some of them convicted. The charged conduct ranged from driving under 

the influence, disorderly conduct, and walking out of a restaurant without 

paying. Ali contends this disparate treatment between the white jurors who 
15

were not struck7 and the black juror that was struck is evidence of the 

discriminatory intent on the part of the Commonwealth. The Commonwealth’s 

explanation was that there is quite a bit of difference between going to prison 

for a long time, in the case of the juror’s nephew, in contrast with the 

experience of the four others whose charges appear to only be misdemeanors.

We agree that a juror’s brief run-in with the law is a world apart from the 

experience of a close family member going to prison for a very long time, 

therefore, we cannot say that the trial court’s decision was clearly erroneous. 

III. CONCLUSION

Based on the foregoing, we hold the Jefferson Circuit Court did not 

abuse its discretion when it allowed the Commonwealth to introduce the GPS 

data from Ali’s participation in HIP. Also, we hold that the Jefferson Circuit 

Court’s rulings on Ali’s Batson challenges were not clearly erroneous and 

therefore must be affirmed.

All sitting. VanMeter, C.J.; Bisig, Conley, Keller, Lambert, and Nickell, 

JJ., concur. Thompson, J., concurs in result only.

7 Two of these juror’s sat on Ali’s jury.
16

COUNSEL FOR APPELLANT:

Jennifer E. Hubbard

Assistant Public Advocate

COUNSEL FOR APPELLEE: 

Russell M. Coleman

Attorney General of Kentucky 

Christopher Henry

Assistant Attorney General