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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 KRS 1 532.110(1)(c). Ali appeals as matter of right 2 claiming
the trial court erred when it admitted evidence that Ali was on HIP 3 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. 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 two-
year-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 EMS 4
4 Emergency Medical Services.
2 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 first-
degree, 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 KRE 6 404(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.
3 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: 4 (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
5 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.
6 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
7 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.
8 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
9 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-by-
side 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.
10 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.
11 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 race-
neutral 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 12 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
13 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
14 were not struck 7 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.
15 COUNSEL FOR APPELLANT:
Jennifer E. Hubbard Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Christopher Henry Assistant Attorney General