RENDERED: OCTOBER 9, 2026; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2025-CA-1344-MR
MICHAEL E. MOORE APPELLANT
APPEAL FROM BOONE CIRCUIT COURT
v. HONORABLE RICHARD A. BRUEGGEMANN, JUDGE
ACTION NO. 09-CR-00641
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, EASTON, AND KAREM, JUDGES.
ACREE, JUDGE: Michael E. Moore appeals the August 28, 2025 order of the
Boone Circuit Court granting the Commonwealth of Kentucky’s motion to dispose
of 89 pieces of evidence. He argues the order violates KRS1 524.140. We disagree
and affirm.
1
Kentucky Revised Statutes.
In 2009, Moore was living with his parents in Union, Kentucky. He
argued with them over his use of his mother’s prescribed medication and other
matters. On June 12, Moore shot both parents in the head with his father’s pistol.
He then shot himself in the thigh, went outside, tossed the weapon on the roof, and
called the police to report an unknown assailant had attacked all three.
A Boone Circuit Court jury found Moore guilty on two counts of
murder, one count of tampering with physical evidence, and one count of falsely
reporting an incident. Consistent with the jury’s recommendation, the trial court
sentenced him to life without the possibility of parole and to additional
incarceration for his other crimes. The Supreme Court affirmed the conviction and
sentence. Moore v. Commonwealth, No. 2014-SC-000023-MR, 2015 WL 4972249
(Ky. Aug. 20, 2015) (hereafter, Moore I).
Back in the trial court, Moore sought post-conviction relief pursuant
to RCr2 11.42, claiming his appellate counsel was ineffective for failing to seek
review of the trial court’s denial of a continuance to obtain DNA testing on his
father’s clothing pursuant to KRS 422.287. He asked the trial court to hold his
RCr 11.42 motion in abeyance and simultaneously moved pursuant to KRS
422.285 for post-conviction DNA testing. He believed testing would show none of
his blood was on the back of his father’s clothing. That evidence, he argues, would
2
Kentucky Rules of Criminal Procedure.
-2-refute the Commonwealth’s theory that Moore shot himself to cover up his crime
and would support his own theory of self-defense.3 With Moore’s RCr 11.42
motion stayed, the trial court denied his KRS 422.285-based motion because it was
not supported by the required affidavit containing “sufficient factual averments.”
Moore appealed that specific ruling.
In December 2018, this Court reviewed that ruling and concluded
Moore’s appeal was from an interlocutory order on an issue that “is indeed an
integral—if not the pivotal—part of his pending RCr 11.42 proceeding.” Moore v.
Commonwealth, No. 2017-CA-001387-MR, 2018 WL 6438675, at *2 (Ky. App.
Dec. 7, 2018) (hereafter, Moore II). We dismissed Moore’s appeal as
interlocutory.
However, we said, “If we were to reach the merits, we would be
compelled to affirm. Moore’s failure to file a supporting affidavit as required by
KRS 422.285(2) is sufficient basis for denial of his request.” Id. We acknowledge
this is nonbinding dicta. But because we deemed the DNA testing issue part and
parcel of the motion for RCr 11.42 relief, the route for getting that issue properly
before this Court was to incorporate it in that motion. Moore did so. That
preserved the issue in case the trial court denied the RCr 11.42 motion in a final
3
The thinking here is apparently that, if his father was already dead and lying on his face when Moore shot himself in the thigh, his own blood spatter would be on the back of his father’s clothing. Of course, this presumes a proximity never discussed.
-3-and appealable order, which it did. Moore then appealed the denial of the RCr
11.42 motion, including the KRS 422.285 issue deemed premature in Moore II.
Given the opportunity in Moore II to present the issue of DNA testing
under KRS 422.285 as part of his RCr 11.42 motion, Moore chose to focus on his
counsel’s alleged “fail[ure] to raise on appeal the trial court’s denial of . . . a
continuance . . . to obtain a mitigation specialist and to perform DNA testing”
during trial pursuant to KRS 422.287. Moore v. Commonwealth, No. 2022-CA0545-MR, 2023 WL 3134008, at *4 (Ky. App. Apr. 28, 2023) (hereafter, Moore
III). On that issue, this Court agreed with the trial court that Moore “had four
years leading up to trial during which he could have . . . conducted DNA testing.”
Id. Although we did not mention it in Moore III, the trial court also noted Moore
was granted KRS Chapter 31 funds to conduct his own independent testing and had
been acting as hybrid counsel since January of 2013. See Order, Commonwealth v.
Moore, No. 09-CR-00641, at 19 (Boone Cir. Ct. Dec. 3, 2021).
The trial court’s order, just cited, also made final and appealable what
Moore II ruled was the interlocutory denial of post-conviction testing pursuant to
KRS 422.285. Moore put less effort into arguing error in the trial court’s postconviction denial of DNA testing. Still, he recognized the distinction between preand post-conviction testing statutes, telling this Court his theory of the case “had
evolved . . . [and] required the need of new evidence” to support it. Appellant’s
-4-Br. at 14 (Moore III). As this Court put it in Moore III, “At trial, [pursuant to KRS
422.287,] Appellant’s counsel moved for DNA testing to determine if his mother’s
blood was found on his father’s shirt. He now argues that DNA testing [pursuant
to KRS 422.285] was required to demonstrate that none of his blood was found on
the back of his father’s shirt.” Moore III, at *4 n.2. We held that the trial court did
not err in finding it “plausible if not likely that his mother’s DNA would be found
on his father’s clothing” under either the Commonwealth’s theory of the case or
Moore’s. Id. at *4. The same is true regarding the absence of his own blood on his
father’s clothing. See Bowling v. Commonwealth, 357 S.W.3d 462, 469 (Ky. 2011)
(quoting District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S.
52, 62 (2009) (“Where there is enough other incriminating evidence and an
explanation for the DNA result, science alone cannot prove a prisoner innocent.”)).
The Commonwealth never took a position whether Moore’s mother’s
DNA was or was not on his father’s clothing, nor whether Moore’s DNA was or
was not on his father’s clothing. That makes the difference here. As we said:
Evidence . . . of a fact not in dispute during trial . . . has no
exculpatory value, and therefore no probative value in the
statutory context of post-conviction DNA testing. See
KRS 17.176(1) (“[A]ny evidence submitted for testing and
analysis pursuant to KRS 422.285 or 422.287 shall be of
probative value.”). Such evidence is not exculpatory in
any way that would have resulted in a different outcome
had it been available at trial.
Owens v. Commonwealth, 512 S.W.3d 1, 9 (Ky. App. 2017) (footnote omitted).
-5-Moore III certainly affirmed Moore’s appeal of the trial court’s denial
of KRS 422.285 DNA testing. As the Supreme Court often makes clear, “At each
stage” in the “organized and complete” structure of post-conviction criminal
appeals, the convicted defendant “is required to raise all issues then amenable to
review, and generally issues that either were or could have been raised at one stage
will not be entertained at any later stage.” Hollon v. Commonwealth, 334 S.W.3d
431, 437 (Ky. 2010). So, to the extent Moore failed to argue that denying KRS
422.285 testing was error, he waived it. “Arguments not pursued on appeal are
deemed waived.” Garland v. Commonwealth, 458 S.W.3d 781, 785 (Ky. 2015).
On the other hand, to the extent he did present the issue, this Court in
Moore III rejected it, but not on the “sufficient basis” identified in Moore II’s
dicta—a procedural failure to append a supporting affidavit. Moore III affirmed on
substantive grounds—Moore cannot satisfy the requirement of convincing the
courts that the evidence he sought would be exculpatory and would have resulted
in a different outcome had it been available at trial. KRS 422.285(5)(a).
In 2024, after this Court rendered Moore III, Moore filed a petition for
habeas corpus in federal district court. On standing referral, a magistrate judge
recommended the petition be denied; the district court adopted the magistrate’s
recommendation and findings. Moore v. Hughes, No. 2:24-CV-00005-REW-EBA,
2024 WL 3305852, at *1 (E.D. Ky. Jul. 3, 2024). The magistrate judge said:
-6-Moore does not explain . . . how this testing would have
disproved the Commonwealth’s theory of the case.
Petitioner Moore has presented no evidence to indicate
that testing Moore’s father’s clothing would have been
exculpatory or would have otherwise changed the verdict
in this matter. Additionally, even if the undersigned were
to assume that testing the clothing in question would have
shown that Moore’s mother’s DNA was on it, Moore has
not explained how it would have supported his selfdefense theory or rebutted the Commonwealth’s theory at
trial. Given the wide discretion the trial court has in this
matter and the fact Moore has failed to demonstrate that
his appeal would have been decided differently if these
issues had been raised on appeal, he has failed to prove
that appellate counsel was ineffective or that he was
prejudiced. Because Moore has not shown that the
[Kentucky] Court of Appeals’ determination on these
issues was unreasonable, this argument must also fail.
Moore v. Hughes, No. 2:24-CV-00005-REW-EBA, 2024 WL 3307674, at *15
(E.D. Ky. Jun. 3, 2024). The district court also denied a certificate of
appealability. Moore, 2024 WL 3305852, at *2.
This background gets us to the issue under review—whether the trial
court violated KRS 524.140 by granting the Commonwealth permission to dispose
of 89 items of evidence. We conclude it did not. First, we examine the statute.
The heart of the statute pertinent here says “[n]o item of biological
evidence . . . that may be subject to deoxyribonucleic acid (DNA) evidence testing
and analysis in order to confirm the guilt or innocence of a criminal defendant
shall be disposed of following the trial . . . .” KRS 524.140(3) (emphasis added).
There are exceptions but none are relevant here. The Commonwealth carried its
-7-burden under KRS 524.140(4) of refuting the necessary premise that what it sought
to dispose of “may be subject to deoxyribonucleic acid (DNA) evidence testing
and analysis[.]” KRS 524.140(3). We have no need to consider the exceptions if
none of the evidence is subject to DNA testing. Therefore, we next consider
Moore’s claim that it is.
Moore says the only reason his post-conviction DNA testing request
was denied was his counsel’s “fail[ure] to Supplement Appellant’s filing(s) with
the required supporting affidavit” and that he “has all the intentions of refiling”
that motion, this time “with [a] supporting affidavit.” Appellant’s Brief at 5.
Regardless of his intentions, he does not have that right.
The Supreme Court said: “By th[e] language [of KRS 422.285(2)(c)
& (3)(c)], the legislature made clear its intent not to have successive, redundant
DNA testing requests . . . .” Bowling, 357 S.W.3d at 468. In layman’s terms
Moore will understand, “DNA testing . . . is limited to the ‘one bite of the apple’
rule.” Id.
In his brief to this Court, Moore cites Virgil v. Commonwealth for his
right to refile. 403 S.W.3d 577 (Ky. App. 2013). But he fails to recognize the
reason Virgil was allowed to refile. The first time Virgil made his motion,
KRS 422.285 only provided a right to post-trial DNA
testing for persons convicted of a capital offense and
sentenced to death in the Commonwealth. Since Virgil
was not sentenced to death, KRS 422.285 did not provide
-8-him with a means to seek DNA analysis of evidence from
his trial.
Id. at 579. Subsequently, “[h]owever, KRS 422.285 was . . . amended” in a way
that allowed Virgil to pursue his motion, so he refiled his motion. Id. Virgil does
not support Moore’s claim he has the right to refile his motion.
Moore III makes it clear that Moore failed to satisfy the statutory
requirements for DNA testing the evidence he identified in his motion, his father’s
and mother’s clothing. He cannot ask again. Furthermore, Garland makes it clear
that, “because [he] confined his argument on appeal to DNA testing of th[os]e two
[items,] he waived his claims with regard to all other items.” 458 S.W.3d at 785
(“[B]ecause Appellant confined his argument on appeal to DNA testing of the two
sets of hair samples he waived his claims with regard to all other items.”).
Moore identified “[n]o item of biological evidence . . . that may be
subject to deoxyribonucleic acid (DNA) evidence testing and analysis” which is
the only evidence KRS 524.140 protects from disposal. Therefore, the order of the
Boone Circuit Court is affirmed.
ALL CONCUR.
-9-BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Michael E. Moore, pro se Russell Coleman
Wheelwright, Kentucky Attorney General of Kentucky
Joseph A. Beckett
Assistant Attorney General
Frankfort, Kentucky
-10-