Full Opinion

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-CA- 0545-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 post- conviction denial of DNA testing. Still, he recognized the distinction between pre- and 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 self- defense 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-