Background
Michael E. Moore was convicted of murdering his parents, tampering with physical evidence, and falsely reporting an incident. He received life without parole plus additional incarceration, and the Kentucky Supreme Court affirmed his conviction and sentence.
In post-conviction proceedings, Moore sought DNA testing of his parents’ clothing, arguing that the results could support his self-defense theory and undermine the Commonwealth’s account of the shootings. The trial court denied testing, and the Kentucky Court of Appeals ultimately affirmed on the substantive ground that Moore had not shown the proposed evidence would be exculpatory and would have produced a different outcome.
After those proceedings, the Boone Circuit Court granted the Commonwealth’s motion to dispose of 89 items of evidence. Moore appealed, arguing that disposal violated KRS 524.140 because he intended to submit another DNA-testing request supported by the affidavit missing from his earlier motion.
The Court’s Holding
The Court of Appeals affirmed. KRS 524.140 prohibits disposal of biological evidence that may be subject to DNA testing to confirm a criminal defendant’s guilt or innocence. The court held that the Commonwealth had established that none of the evidence at issue remained subject to such testing.
Moore could not renew his request to test his parents’ clothing because Kentucky’s post-conviction DNA-testing statute does not permit successive, redundant requests—the “one bite of the apple” rule—and his prior request had already been rejected on substantive grounds. Virgil v. Commonwealth did not authorize refiling because that case involved a statutory amendment that newly made DNA testing available to the defendant.
The court also concluded that Moore had waived any testing claims concerning the remaining evidence because his earlier appeal addressed only his parents’ clothing. Because Moore identified no biological evidence still eligible for DNA testing under KRS 422.285, KRS 524.140 did not prevent disposal.
Key Takeaways
- KRS 524.140 protects biological evidence from disposal only when it may still be subject to DNA testing aimed at confirming guilt or innocence.
- Kentucky law limits successive, redundant post-conviction DNA-testing requests under the “one bite of the apple” rule.
- A defendant who confines an appellate DNA-testing argument to specified items may waive testing claims concerning other evidence.
Why It Matters
The decision links Kentucky’s evidence-preservation requirement to the continuing availability of post-conviction DNA testing. Once testing is no longer legally available—because a request was substantively rejected or claims concerning other items were waived—the preservation statute does not independently bar disposal.
The opinion also clarifies that Moore’s earlier testing request was not denied solely for lack of an affidavit. The later appellate decision affirmed the denial on the merits, foreclosing his stated plan to cure the procedural defect and apply again.