MODIFIED: NOVEMBER 23, 2011 

RENDERED: JUNE 16, 2011 

TO BE PUBLISHED 

Sittprrint (Court of 

2008-SC-000860-MR 

2008-SC-000925-MR 

2008-SC-000957-MR DATE 1 

1 \ tvar4+P-c-- 

* r 

BRIAN KEITH MOORE APPELLANT/CROSS-APPELLEE 

ON APPEAL FROM JEFFERSON CIRCUIT COURT 

V. HONORABLE JAMES M. SHAKE, JUDGE 

NO. 79-CR-000976 

COMMONWEALTH OF KENTUCKY APPELLEE/CROSS-APPELLANT 

OPINION OF THE COURT BY JUSTICE NOBLE 

AFFIRMING IN PART, REVERSING IN PART, AND REMANDING 

This case arises from a post-conviction petition for DNA testing related to 

the 1979 robbery, kidnapping, and murder of Virgil Harris in Louisville, 

Kentucky. Appellant, Brian Keith Moore, was convicted of the crimes and 

sentenced to death. This Court overturned the initial conviction and remanded 

for a new trial. See Moore v. Commonwealth, 634 S.W.2d 426 (Ky. 1982). On 

retrial, Appellant was again convicted and sentenced to death. This Court 

affirmed the conviction and sentence. See Moore v. Commonwealth, 771 S.W.2d 

34 (Ky. 1988). Appellant unsuccessfully sought to collaterally attack his 

conviction and sentence at both the state and federal levels. See Moore v. 

Commonwealth, 983 S.W.2d 479 (Ky. 1998) (denying RCr 11.42 and CR 60.02 
relief); Moore v. Parker, 425 F.3d 250 (6th Cir. 2005) (denying habeas corpus 

relief). 

Appellant pursued post-conviction DNA testing under KRS 422.285 in 

the circuit court. He now comes before this Court seeking additional DNA 

testing beyond that ordered below or, in the alternative, to vacate his conviction 

and sentence for several reasons, including the post-trial loss of evidence that 

was to be tested for DNA. The Commonwealth cross-appeals as to several 

issues. This Court disagrees that Appellant has demonstrated that his 

conviction and sentence should be vacated, but agrees that the circuit court 

erred in reading its power to order certain DNA testing to be limited by statute. 

The Commonwealth's cross-appeal is without merit. For these reasons, the 

circuit court is affirmed in part, reversed in part, and this matter is remanded 

for further proceedings. 

I. Background 

A. Factual Background 

Because this case stems from a collateral attack on Appellant's 

conviction under Kentucky's capital post-conviction DNA statutes, rather than 

a direct appeal of the conviction, a detailed recitation of the facts of Appellant's 

trials and crimes is unnecessary. Those facts are laid out in detail in the cases 

cited above. But while it is unnecessary to recount all of the facts, at least 

some discussion of them is necessary to frame Appellant's claims related to 

DNA testing, which in turn depend on his claim that another person committed 

the crimes. 

2 
The victim, Virgil Harris, was abducted while running errands for his 

business and murdered a short time later. On the morning of his murder, he 

left his store, driving his maroon Buick, to obtain several rolls of coins from his 

bank and then to buy bananas for his ice cream parlor from a nearby grocery 

store. As he was leaving the grocery, around 11:45 a.m., Harris was abducted 

at gunpoint. A witness later testified to seeing a man matching Appellant's 

description pointing a gun at the driver of a maroon car in the grocery parking 

lot. Later that day, Appellant was seen driving a maroon car, which he claimed 

belonged to his uncle. 

Police first learned of the incident not by finding the body but from 

Kenny Blair, one of Appellant's friends, who was awaiting sentencing for a 

robbery conviction. Blair asked his attorney to contact the prosecutor to offer 

information about the murder of a police officer's father in exchange for a 

reduced sentence. He claimed to have learned of the crime directly from 

Appellant. 

Harris's body was later found almost ten miles away in southern 

Jefferson County. He had been pushed down an embankment and shot four 

times in the head at close range. His car was found in the parking lot of the 

apartment complex where Blair lived. When police found Appellant, he had 

Harris's car keys and wristwatch, and the likely murder weapon. Some of the 

victim's papers were found in the glove box of the car in which Appellant was 

riding at the time of the arrest. After the arrest, Appellant confessed to the 

crime to three police officers and made incriminating statements in front of a 

3 
corrections officer.' He had previously confessed to Blair and his girlfriend, 

Lynn Thompson. 

At trial, Blair testified against Appellant, claiming that Appellant had 

admitted to the crimes the night after they were committed. Other testimony 

established that several days prior to the crimes, Appellant had been living at 

the home of Blair's mother but had moved into Blair's apartment about two 

days before the crimes. Blair's mother testified that Appellant showed up at her 

house around 1:00 p.m. the day of the murders and was wearing a set of dark 

clothes. She stated that Appellant asked for a change of clothes and left what 

he had been wearing in her laundry. 

Lynn Thompson, Blair's girlfriend at the time, testified that the clothes 

Appellant left behind belonged to her father and that she turned the clothes 

over to the police. She also stated that she and Blair had sublet their 

apartment from her father, John Thompson, who had left several items behind, 

including clothes. 

Appellant's various confessions were also admitted into evidence. The 

Commonwealth's evidence also included evidence of Appellant's fingerprint in 

the maroon car and on some of the proceeds of the robbery, gunshot residue 

evidence from Appellant's hands, expert testimony from an FBI forensic analyst 

1 This may have been the most damning evidence. According to the corrections officer, 

Appellant boasted to a fellow prisoner that he had committed the crime and that the 

victim's dying convulsions were funny. He told the fellow prisoner that "it was a pig's 

father" and that the "only thing [he] regret[ted] is that it wasn't the pig [he] killed." 

Apparently, Mr. Harris's son was a police officer. Appellant also referred to the 

corrections officer in the conversation, stating, "There's nothing he can do about it 

anyway. If I had the opportunity I'd just as soon kill him." 
that soil on some of the clothes matched that at the crime scene, and evidence 

that the bullets used in the murder matched Appellant's gun and that similar 

bullets were found where Appellant was staying at the time of the crimes. 

Appellant's defense strategy blamed Blair for the crime. Appellant 

admitted to driving the victim's car, but claimed he had only borrowed it from 

Blair, who had stolen it. He also denied having fired a gun, committing any of 

the crimes, or confessing to the police, claiming as to the latter that the police 

told him they would make up a confession if he did not confess. And he offered 

the testimony of seven witnesses, including one of Blair's cellmates, who 

claimed that Blair admitted to committing the crimes and then framing 

Appellant. 2He also argued that he could not have worn the pants admitted into 

evidence because they were too small. 

Blair, however, had an alibi, albeit a shaky one. The Commonwealth 

offered testimony from a clerk at the driver's license office that Blair had been 

there at some point between 11:00 a.m. and 12:30 p.m. the day of the crimes, 

though she could not be specific. Thompson also claimed to have accompanied 

Blair to the driver's license office. Moreover, tests failed to reveal gunshot 

residue on his hands shortly after the crimes and his fingerprints were not 

found in the victim's car or on some of the stolen items. 

After hearing all this testimony, the jury apparently believed the evidence 

against Appellant instead of that about Blair and, as a result, convicted 

2At a post-conviction hearing on his first CR 60.02 motion, discussed in more detail in 

Moore v. Commonwealth, 983 S.W.2d 479 (Ky. 1998), Appellant offered the testimony 

of three additional witnesses who claimed that Blair admitted to the killing and that 

he framed Appellant. 

5 
Appellant and sentenced him to death. The result of his first trial was reversed, 

but on retrial, with much the same evidence, Appellant was again convicted 

and sentenced to death. 

Appellant's second direct appeal and state and federal collateral attacks 

followed. 

B. Procedural Background 

Very soon after the conclusion of his federal habeas litigation, Appellant 

filed a post-conviction DNA testing petition in the Jefferson Circuit Court. Over 

the course of two years, the circuit court heard multiple motions from both 

Appellant and the Commonwealth, and issued multiple opinions and orders 

before the claims were ripe for appeal. The portion of the circuit court's file 

covering the DNA petition covers approximately 1000 pages. Given the number 

of motions and decisions at the court below, a review of several of them is 

necessary to frame the issues to be decided. 

1. Initial Petition and Motions, and June 22, 2006 Order 

In 2006, Appellant filed a petition under KRS 422.285 to have several 

items of evidence from his trial tested for DNA, which he claimed could 

exculpate him. He specifically asked for testing of the shoes and pants that 

were introduced as evidence at trial, as exhibits 28 and 29, and which were not 

part of the court's file but which may have been in either the circuit court 

clerk's or Commonwealth's possession. He also asked that some of the victim's 

clothing, wallet, and money bag be tested. 

6 
The Commonwealth responded that finding another person's DNA on the 

items would not have exonerated Appellant. As to the shoes and pants 

specifically, the Commonwealth claimed that Appellant was not wearing them 

at the time of the arrest and claimed that no one had alleged he had worn them 

on the day of the murder, though the Commonwealth had offered those items 

in evidence at trial against Appellant and introduced circumstantial evidence 

that he had worn the clothes during the murder. 

Before the trial court decided the petition, Appellant further moved that 

the Commonwealth be required to preserve any evidence that could be subject 

to DNA testing. He thereafter moved that the court order DNA testing by an 

independent laboratory and that even if he did not satisfy KRS 422.285, the 

court ordered the evidence released so that his counsel could get it 

independently tested for DNA with his own funds. In addition to KRS 422.285, 

Appellant claimed that the court had authority for such orders under Section 

109 of the Kentucky Constitution and the Eighth and Fourteenth Amendments 

of the United States Constitution. The Commonwealth strenuously objected to 

independent testing, arguing that the DNA testing statutes only allow testing 

by the Kentucky State Police Forensic Laboratory (hereinafter, "KSP 

Laboratory"). 

Shortly thereafter, Appellant also moved that evidence be placed in the 

court's file for ease of access by him, that he be allowed to inspect the evidence, 

that the Commonwealth be required to comply with the inventory requirement 

of KRS 422.285(6), and that the Commonwealth be required to disclose all 

7 
material and exculpatory evidence not previously disclosed. In support of this 

motion, Appellant noted that some of the evidence had been stored in other 

locations and had been "misplaced in the past, thereby preventing previous 

counsel and current counsel from examining the evidence." Appellant attached 

a partial transcript of his RCr 11.42 hearing at which preservation and loss of 

evidence was discussed. Interestingly, the transcript specifically mentions "two 

pairs of pants" that Appellant's counsel sought to examine for sizing and fitting 

purposes but which appeared to be lost at the time, though it is not clear from 

the transcript if the pants in question then are the same ones Appellant has 

now asked to be tested for DNA. 

A short time later, Appellant filed a supplemental motion offering an 

example of DNA exoneration in New York and "suggesting" that specific types of 

DNA testing be conducted. Appellant noted that one of the basic DNA tests is 

polymerase chain reaction (PCR) testing, but that samples are sometimes too 

small or degraded to allow such testing. According to the motion, smaller, even 

microscopic, or degraded samples can sometimes be tested by more advanced 

methods, including mitochondrial DNA testing and short tandem repeat (STR) 

testing, which Appellant specifically requested. 3Appellant also claimed that 

any person who had worn the clothing—and the Commonwealth claimed he 

had—likely would have left behind bodily fluids, such as sweat, or skin cells 

from which a minute amount of DNA could be extracted and tested. 

3 Appellant notes in a later motion that the state lab does conduct STR testing. It 

appears, then, that he was asking for a variant of STR testing, which is only 

performed by other laboratories, and which he identified and discussed in the later 

motion. 

8 
As required by KRS 422.285(6), the Commonwealth provided an 

inventory of physical evidence that included the pants, shoes, and several other 

items of clothing that Mrs. Blair had claimed Appellant wore the day of the 

killing. This clothing had originally belonged to another man, Lynn Thompson's 

father, and was found in a laundry pile at the home of Kenny Blair's mother. 

The Commonwealth was unable to find some items, such as the victim's money 

bag, and several motions related to this lost evidence, including one to take 

depositions, followed. 

Later still, Appellant filed a notice with the circuit court that his counsel 

had taken a DNA sample from one of Blair's relatives, a nephew, for 

comparison testing (Blair died in 1995) and moved for comparison testing. 

On June 22, 2006, the circuit court ruled on Appellant's petition and 

many of his motions. The court ordered that any evidence in the 

Commonwealth's possession be preserved and that the Commonwealth prepare 

an inventory of evidence in its possession but denied the motion to put 

evidence in the court's record, requiring instead that the evidence be made 

available for Appellant's inspection. The court also denied the motion for 

independent testing, ruling that KRS 17.176 required that any testing be done 

by the KSP Laboratory or an outside laboratory of its choice and that KRS 

524.140(5) placed restrictions on the KSP Laboratory in such testing. The court 

also noted that no evidence of "fault or bias" on the part of the police had been 

offered that might persuade the court to order independent testing anyway. 

9 
In the same order, the court granted Appellant's motion for DNA testing. 

The court recounted the evidence against Appellant, which included multiple 

confessions, gunshot residue on Appellant's hand when arrested, that 

Appellant's fingerprints were found in the victim's car and on rolls of coins that 

the police recovered, testimony that he had been seen in the victim's car, 

documents belonging to the victim were found in Appellant's car, ammunition 

similar to that used in the killing was found where Appellant was staying at the 

time of the crime, Appellant had the victim's watch and gave proceeds from the 

robbery to other people (Blair and Thompson), and most importantly, testimony 

from Kenny Blair, who originally alerted the police to the crime and whom 

Appellant claimed committed the murders. The court concluded that the 

evidence of Appellant's guilt was "equally consistent with [his} assertion that he 

was set up by Blair and his girlfriend." 4 

The court held that Appellant had satisfied the requirements of KRS 

422.285 that there be a reasonable probability that he may not have been 

prosecuted or convicted if DNA exculpatory evidence is present, and of KRS 

17.176 that the evidence to be tested is probative. Thus, the court concluded 

that it was required under KRS 422.285(2) to order testing. The court also 

4 Though the court did not discuss it in detail, other testimony supported Appellant's 

theory that he had been framed. In addition to his own testimony, wherein he 

admitted to driving the victim's car but claimed he had only borrowed it from Blair, 

who had stolen it, he also offered the testimony of multiple witnesses who claimed 

that Blair admitted to committing the crimes and then framing Appellant. Also 

supporting the court's conclusion is the fact that the persons to whom he allegedly 

gave proceeds of the robbery were Blair and Thompson, and that the place where 

evidence like the bullets was found was Blair's apartment, which was where 

Appellant was staying at the time of the crimes. 

10 
concluded that the requirements of KRS 422.285(3), which gives the court 

discretion to order testing, had been met. However, the court declined to order 

the use of the specific type of DNA testing requested by Appellant, noting again 

that it was "empowered to send evidence to KSP or its designee for sampling 

and testing" but that "it is unclear whether KSP or another laboratory within 

its purview is set up to conduct the STR DNA testing recommended by Moore." 

Finally, the court declined to order testing of the sample from Blair's 

nephew, noting that testing under KRS 422.285, in order to be exculpatory, 

needed to exclude Appellant, not simply demonstrate the presence of another 

person's DNA. The court noted that only upon a showing of exclusion of 

Appellant would comparison testing of other people be appropriate. 

2. The Commonwealth's and Appellant's Motions to Reconsider, Request 

for Specific Types of Testing at an Outside Laboratory, 

and October 11, 2006 Order 

The Commonwealth moved the circuit court to reconsider its June 22 

order, arguing that it was too broad, failed to include findings of fact as to each 

item of evidence to be tested, and erred in concluding that the evidence at trial 

was equally compatible with Appellant's guilt and having been framed. The 

Commonwealth also asked the court to hold a Daubert hearing on the validity 

of Moore's theory that DNA from sweat could be on the clothing. 

The Appellant also moved for reconsideration of the decision to deny 

independent testing and designation of who was required to pay for the testing. 

The Appellant also requested clarification about the Commonwealth's duty to 

11 
supplement its inventory of the evidence. In this motion, he specifically 

identified an outside laboratory, Orchid Cellmark Laboratory, which could and 

should perform more advanced tests than the KSP Laboratory, and argued that 

tests performed by the state laboratory could destroy evidence that might 

thereafter make more advanced testing impossible. He also raised another type 

of DNA testing not previously identified in his motions, Y-STR, which is STR 

testing of the Y-chromosome, which is present only in males. This type of 

testing is more sensitive than ordinary STR testing and, according to 

Appellant's motion, "is useful when there is cross contamination of a sample 

and specific male DNA needs to be isolated." He also again raised the 

possibility of mitochondrial DNA testing, which he stated "allows for testing 

when all the nuclear material from a cell has degraded." He noted that the 

state laboratory conducts neither type of test, but that it does employ Orchid 

Cellmark to conduct such testing. He also noted that the state lab does 

perform standard STR testing, but that such testing is likely to destroy the 

entire sample, which would make additional testing impossible. 

In response, the Commonwealth argued, in part, that the state lab was 

capable of determining whether it could perform the appropriate tests and that 

it would no doubt inform the court if it could not and would then employ an 

outside lab to perform the test. The Commonwealth stated, "Immediately 

bypassing the KSP lab .. . is not appropriate under the statute." 

12 
The Commonwealth's motion for reconsideration was denied on October 

11, 2006. 5The court held that the fluid standard in KRS 422.285 did not 

require specific findings as to each piece of evidence to be tested. The court 

also held that STR testing, which is a type of the ordinarily used PCR testing, 

was automatically admissible as a standard DNA test and required no Daubert 

hearing. The court did not discuss Y-STR testing or the Commonwealth's 

objection to the Appellant's "sweat theory." The court also denied 

reconsideration of its decision to deny independent testing but stated that the 

cost of testing the first five items would be borne by the Commonwealth, with 

any additional testing to be paid for by Appellant. The court clarified the 

Commonwealth's duty regarding its inventory, stating that it has a "continuing 

duty to supplement . . . should any evidence come to light." 

3. Loss of Evidence and CR 60.02 Motion 

Following the October 11 order, in January 2007, Appellant renewed his 

motion for independent DNA testing, claiming that new information had arisen, 

including allegations that the state lab was biased, could not perform the most 

modern DNA test, and would not recognize when those tests should be 

performed, and that Orchid Cellmark, who the state lab uses for outside 

testing, had recently suffered problems that called into question its reliability 

(and led to another state cancelling its contract with the lab). The Appellant 

then asked for alternative testing by a lab other than Orchid Cellmark or, in 

5 Before the court could rule on these motions, on July 21, 2006, the Commonwealth 

filed a notice of appeal of the June 22 order. The appeal was dismissed by this court 

on December 18, 2006, because the circuit court had not rendered a final and 

appealable decision. 

13 
the alternative, an order barring the state from using Orchid Cellmark in this 

case. The Commonwealth objected on February 19, 2007, arguing that the 

Appellant's motion was a "belated, successive motion for reconsideration" that 

"is procedurally barred" and offering evidence that Orchid Cellmark was still a 

valid, reliable source of DNA testing. The circuit court denied Appellant's 

motion, finding that he had failed to demonstrate bias or problems with Orchid 

Cellmark's testing for the Kentucky State Police (and noting that the 

information about Orchid had come from one of its competitors in the private 

DNA testing market). 

Appellant also filed his notice of items to be tested for DNA. The notice 

included a pair of pants and shoes worn by the killer, which had been exhibits 

28 and 29 at trial, along with the victim's clothing, wallet, and money bag. 

When the Commonwealth went to test the items, the pants and shoes were 

found to be missing. Apparently, when the Commonwealth prepared its 

inventory, it had only reviewed the labels on the evidence containers, fearing 

that opening them might lead to contamination of the evidence. The labels 

indicated that the pants and shoes were included, which turned out not to be 

the case once the containers were opened. 

On June 1, 2007, Appellant filed a motion under CR 60.02(e) and (1) 

asking that this conviction or sentence be vacated because the Commonwealth 

had lost the shoes and pants. The court reserved ruling on the CR 60.02 

motion and gave the Commonwealth 60 days to conduct a thorough search for 

the missing evidence. 

14 
4. December 10, 2007 Order 

The Commonwealth undertook a substantial search for the missing 

items, contacting over a dozen individuals and multiple police and other state 

agencies. The police dedicated overtime effort to find the items. Ultimately, 

however, the search was unsuccessful. The Commonwealth reported the 

results of the search to the court on November 13, 2007. As a result, the 

Commonwealth again moved the court to reconsider the portion of the June 22 

order that would require testing of the shoes and pants, because results of 

such testing would be irrelevant, since Kenny Blair could not have worn the 

clothing in question (as he allegedly weighed about 300 pounds at the time of 

the crime and the clothes were from a man who weighed about 180 pounds), 

and because such testing would be impossible. 6The Commonwealth also 

moved the court to compel Appellant to provide a DNA sample for comparison 

to the tests on the items that could be found. The Appellant objected to giving a 

DNA sample and comparison testing. 

On December 10, 2007, the court denied the motion to compel Appellant 

to give a DNA sample, holding that such comparison testing was premature 

when the items of evidence had not yet been tested. As to the missing items, 

the court found that the Commonwealth had engaged in "reasonable diligence" 

6 This would be a motion to reconsider following the denial of a motion to reconsider 

the same order, which is, ironically, what the Commonwealth accused Appellant of in 

its February 19 response to Appellant's "renewed motion." 

The Commonwealth's motion to reconsider also claimed that "it was proved at both 

trials" that Appellant had been wearing the clothing he seeks to have tested, despite 

its assertions in earlier filings that such a fact has not even been alleged. 

15 
to find them. The court noted, "Simply put, where there are no items for 

testing, the Court cannot find potential testing to be 'outcome determinative.'" 

As a result, the court denied the Commonwealth's motion for reconsideration, 

noting that the loss of the evidence rendered moot any reconsideration of its 

order and stating, "The Commonwealth recites arguments that this Court has 

rejected on two prior occasions and the Court is not inclined to re-visit those 

issues without case law authorizing it to do so." The court also denied 

Appellant's CR 60.02 motion, holding that such relief is not available simply 

because evidence to be tested for DNA is not available and that the proper 

action was to dismiss the DNA petition as to those items. 

Appellant sought an appeal to this Court at that time, which was denied 

because the trial court had not issued a final and appealable order. 

5. DNA Testing 

The KSP Laboratory performed regular STR testing in March 2008. The 

items tested included an envelope, a wallet, a blue shirt, a black coat, and a 

check. The amount of DNA extracted from the items was limited, however. The 

analyst's report states, "Partial DNA profiles were obtained [from some of the 

items] but were too limited for interpretation. No further analysis was 

conducted." 

Though Appellant had previously objected to the Commonwealth 

obtaining a comparison DNA sample from him, when the DNA results of testing 

on the items came back, he announced that his counsel would provide one, a 

self-collected buccal sample, to the KSP Laboratory. The Commonwealth moved 

16 
the circuit court for an order barring the testing of this self-collected sample, 

arguing, "The honor system is not acceptable in this matter. The idea of a 

condemned prisoner collecting DNA from himself should be rejected out of 

hand." A few days later, the Commonwealth also moved the court to order the 

KSP Laboratory to communicate and cooperate with it. According to the 

Commonwealth, Appellant's counsel had told the analyst at the KSP Laboratory 

"that she and the lab were his 'client' and 'he would rip [her] a new one for 

talking with [the Commonwealth]."' 

The trial court sustained the motion to require the laboratory to 

communicate with the Commonwealth but declined to bar testing of the selfcollected specimen. The state lab then did a comparison of the sample 

submitted by Appellant to the partial DNA profiles found on the items 

previously tested. Again, the analyst reported that "[p]artial profiles were 

obtained . . . but were too limited for interpretation." However, the analyst 

also returned the specific results from the various tests, which appear to 

demonstrate the presence of DNA from multiple people.? 

After receiving the results, Appellant moved for further DNA testing, 

specifically Y-STR testing. In support of the motion, he noted that the KSP 

Laboratory had been unable to confirm or eliminate him as having contributed 

biological material to the items but that the tests indicated the presence of DNA 

7Though it is not immediately clear from the record or the briefs, it appears that 

copies of the analyst's report and results were given to the Commonwealth. The 

Commonwealth discusses these items at length and even quotes from them. As the 

trial court properly ruled, the KSP Laboratory should cooperate with the 

Commonwealth, including disclosing the results of DNA testing under KRS 422.285. 

17 
from multiple people. Appellant also recounted discussions with an analyst at 

the KSP Laboratory, who stated that the more advanced testing could be done 

at the Commonwealth's contract lab, Orchid Cellmark, and with an analyst at 

Orchid Cellmark, who stated that Y-STR testing could be useful in this case. 

Appellant then asked for further testing at an outside lab of his choosing, citing 

his previous concerns with Orchid Cellmark, or alternatively additional testing 

at Orchid Cellmark. 

The trial court reviewed the results of the DNA testing done by the KSP 

Laboratory and found that "the testing reveals that male DNA is present on the 

items test[ed]. Although the DNA is consistent with [Appellant's] sample, it also 

indicates the presence of another man's DNA, . . . 'non-match DNA evidence."' 

Nevertheless, the court denied the Appellant's motion, again holding that KRS 

17.176(1) and KRS 524.140(5) require that testing be done only by the KSP 

Laboratory or its designee and that it was "without authority to make orders 

not specifically authorized by statute." The court also noted that KRS 

422.285(8) requires dismissal of the petition if the results of testing are not 

favorable to the petitioner, and that inconclusive results do not demonstrate a 

"reasonable probability of innocence." 

6. November 7, 2008 Order 

Soon thereafter, Appellant moved the court to vacate his conviction or 

sentence under KRS 422.285 because another person's DNA had been found 

on some of the items tested. In an order dated November 7, 2008, the trial 

court treated this as a CR 60.02 motion to vacate. Again, the court noted that 

18 
results of the DNA testing show that "[t]he [Appellant] was not excluded as the 

donor of the DNA on the items tested" but that "another individual's DNA was 

also present on those items." The court noted that some states, such as 

Tennessee and Texas, treat inconclusive results as being "unfavorable" and 

"inconsistent with a 'reasonable probability of innocence."' The court also noted 

that other states, such as Kansas, treat the presence of another person's DNA 

on items as favorable but not conclusive evidence of innocence; instead, such 

favorable findings must be weighed against the evidence of guilt. After 

reviewing that evidence, as described above, the court concluded that "even if it 

were demonstrated that another individual contributed DNA to the 'murder 

clothes,' the probative value of the trial evidence is undiminished. Thus, it 

would be inappropriate to set aside the [Appellant's] conviction." The court also 

noted that "the DNA results herein do not rise to the level of materiality to 

counter-balance the evidence produced at trial," and that "when the DNA 

results do not exonerate or exculpate, the appropriate action is dismissal of the 

petition." The court then denied the motion to vacate. 

7. Final Motion and Order 

Shortly thereafter, the Kentucky Innocence Project obtained a federal 

grant to conduct DNA testing in post-conviction cases. On November 13, 2008, 

Appellant filed a motion for release of evidence for independent testing to be 

paid for with this grant. The Commonwealth responded that the claim was 

barred by res judicata and that the Appellant had filed a notice of appeal, 

which divested the court of jurisdiction. On November 19, the trial court denied 

19 
the motion, noting, "This Court has previously held that it does not have the 

authority to grant DNA testing which exceeds the limitations of the statute. 

That ruling was not based upon the cost of the testing but upon the specific 

language of the statute requiring testing to occur at KSP." The court also noted 

that it was without jurisdiction because the matter was already on appeal. 

The issue of whether the appeal was pending is unusual. The 

Commonwealth claims that the notice of appeal was filed on November 10, 

2008, three days before the last motion was filed. Appellant claims in his brief 

that the notice of appeal was not "officially filed" until November 19, and that 

an order to proceed in forma pauperis was not entered until November 18. The 

notice of appeal actually has two "filed" dates on it: the clerk's ordinary stamp, 

dated November 10, and a hand-written filing date of November 19, above 

which was stamped in bright red ink the words "ON APPEAL" and below which 

were stamped "DEATH PENALTY" and "FORMA PAUPERIS." The record reveals 

that Appellant tendered his notice of appeal on November 10, along with a 

motion to proceed in forma pauperis, but his notice was not officially "filed" 

until that motion was granted per RCr 73.02(1)(b). 

8. Appeal 

Appellant's appeal comes to this Court directly, as a matter of right, 

because he was sentenced to death. See Ky. Const. § 110(2)(b); Leonard v. 

Commonwealth, 279 S.W.3d 151, 155 (Ky. 2009) ("This Court has exclusive 

appellate jurisdiction over death penalty matters, even when the appeal 

20 
involves a collateral attack on a sentence of death."). The Commonwealth crossappeals to challenge several of the trial court's decisions. 

IL Analysis 

The Appellant, on appeal, and the Commonwealth, on cross-appeal, raise 

numerous issues. We address first Appellant's contentions and then, to the 

extent necessary, the Commonwealth's cross-appeal. 

A. Appellant's Claims 

The Appellant claims that the loss of evidence requires the reversal of his 

conviction or death sentence, or at least an evidentiary hearing in which he can 

present evidence that the Commonwealth acted in bad faith; that the evidence 

of another person's DNA on the evidence also requires reversal of his conviction 

or death sentence; that he should be allowed to have testing performed by an 

outside laboratory under Kentucky's statutes; that disallowing outside testing 

violates federal due process; and that the trial court should have ordered the 

release of the evidence and had the jurisdiction to do so. 

1. Lost Evidence 

a. The Loss of Evidence Does Not by Itself Require . Automatic Reversal or 

Vacating of Appellant's Conviction or Sentence. 

Appellant argues that his conviction and sentence should be reversed or 

vacated simply because evidence used at his trial was lost after the fact and 

cannot now be tested for DNA. He makes much of the fact that the trial court, 

in ordering the testing of the shoes and pants, found that favorable DNA 

21 
results would create a reasonable probability that he would not have been 

prosecuted or convicted, as required by KRS 422.285. 

Appellant relies heavily on Crawford v. State, 934 S.W.2d 744 (Tex. App. 

1st Dist. 1996), in support of his contention that reversal is necessary, but this 

Court is not convinced of its applicability. First, Crawford is not binding on this 

Court. Second, it is easily distinguishable from this case. In Crawford, the 

defendant claimed on appeal that she had been denied access to impeachment 

evidence, specifically a crime stoppers report detailing information given to a 

police officer who testified at trial, in violation of Brady v. Maryland, 373 U.S. 

83 (1963). She had requested the report at trial, but the trial court had denied 

her access to it, and on direct appeal the intermediate appellate court agreed 

that production of the report was not compelled. See Crawford v. State, 892 

S.W.2d 1, 3-4 (Tex. Crim. App. 1994). The Texas Court of Criminal Appeals 

reversed and remanded to the intermediate appellate court, which in turn 

abated the appeal and remanded to the trial court to hold a hearing on the 

availability and materiality of the report. See Crawford, 934 S.W.2d at 746. The 

trial court discovered that the report had been destroyed by a computer virus 

in 1991, "either . . . before trial when the virus attacked the computer or after 

trial when information on the computer was purged." Id. at 747. The appellate 

court then concluded that denial of the report, which had already been found 

erroneous, could not be harmless error because the state could not prove that 

the report had been destroyed both in good faith and before the trial. Id. 

22 
But the Brady framework employed in Crawford is inapplicable to this 

case, which involves a post-conviction attempt to get DNA testing that did not 

exist at the time of the Appellant's trial. There is no claim that the shoes and 

pants were withheld from Appellant at trial. In fact, as Appellant makes much 

of in his brief, those items were used as evidence against him in his trial. The 

subsequent emergence of a new technology for evaluating evidence cannot be 

used to manufacture a Brady violation after the fact. In essence, any DNA that 

may have been on the missing clothes at the time of trial was not material at 

that time (and thus not covered by Brady) because testing it would have been 

impossible. Again, as Appellant notes, forensic DNA testing was not developed 

until many years after his trial. Appellant's "right to due process is not parallel 

to a trial right, but rather must be analyzed in light of the fact that he has 

already been found guilty at a fair trial, and has only a limited interest in 

postconviction relief. Brady is the wrong framework." District Attorney's Office 

for Third Judicial Dist. v. Osborne, 129 S. Ct. 2308, 2320 (2009). 

More importantly, testing under KRS 422.285 requires that "Nile 

evidence is still in existence and is in a condition that allows DNA testing and 

analysis to be conducted." KRS 422.285(2)(b) 85 (3)(b). If the evidence does not 

exist, then it obviously cannot be tested, and KRS 422.285 only gives the right 

to a test, not to reversal of a conviction simply where testing is impossible. 

Thus, this Court recently held that as a precondition to ordering testing under 

KRS 422.285, "the trial court must also find that the evidence requested to be 

tested exists in a condition that will allow proper DNA testing. If it is not, then 

23 
obviously the inquiry is at an end." Bowling v. Commonwealth, 2008-SC000901-MR, S.W.3d , , 2010 WL 3722283, at *5 (Ky. Sept. 23, 2010). 

Appellant seeks to evade this requirement by arguing that the trial court 

had already ordered the testing of the missing items, having found that 

favorable results would likely exonerate him. But as this Court noted in 

Bowling, the evidence to be tested must exist "[elven though a trial court may 

have found reasonable probability that the evidence as described by the 

movant would exonerate him, lead to a more favorable verdict, or definitely be 

exculpatory." Id. That the trial court's order was mistaken, because the 

Commonwealth, in turn, was mistaken, about whether the evidence was 

available does not change this absolute requirement. This Court has previously 

held that where a given item of evidence is unavailable and other testing is not 

favorable, then the circuit court is required to dismiss the petition. See Taylor 

v. Commonwealth, 291 S.W.3d 692, 695 (Ky. 2009). This Court adheres to that 

position and agrees with the circuit court that the only remedy available where 

evidence sought to be tested under KRS 422.285 is missing is dismissal of the 

petition, even if only as to the missing evidence. 

Moreover, the trial court's finding under KRS 422.285 in support of its 

order for testing, that there is a reasonable probability that Appellant may have 

been exonerated if the results of DNA testing were favorable, is not by itself 

conclusive of anything. Appellant urges that this finding, when combined with 

the loss of evidence, is sufficient to require reversal of his conviction and 

sentence, going so far as to claim that the trial court found the evidence was 

24 
"valuable" and that this therefore creates "grave doubt" about Appellant's guilt. 

But the circuit court's finding is only relevant and significant to support 

requiring testing. By itself, without favorable results from a DNA test, that 

finding is meaningless as it relates to guilt or innocence. The finding is 

necessarily speculative and conditional, with any actual relief depending on 

favorable results from the testing. KRS 422.285 is only a mechanism for 

obtaining post-conviction DNA testing, which in turn might be used to show 

innocence or be exculpatory to a lesser degree. The statute is not itself a 

mechanism for speculating about innocence. In making this claim, the 

Appellant ignores the fact that he has already been convicted at a fair trial, 

which has been affirmed by this Court. While the system is admittedly 

imperfect, which is why KRS 422.285 exists in the first place, that fact does not 

require reversal of a conviction after the fact simply because Appellant can 

imagine a scenario in which he might be shown to be innocent. Where such a 

showing is impossible due to loss of evidence, even through no fault of the 

Appellant, he has failed to show entitlement to relief. 

Nor does the circuit court's finding mean, as Appellant suggests, that he 

would definitely have been exonerated by favorable results, which further 

demonstrates the problem created by the lost evidence. The circuit court ruled 

only that favorable results would create a reasonable probability of 

exoneration. But favorable results can come in a variety of forms, ranging from 

impeaching other evidence all the way to absolute exclusion of the convicted 

person as having committed the crime. This, of course, is why KRS 422.285 

25 
does not require reversal of a conviction upon favorable DNA testing and 

instead requires a further hearing and further orders. See KRS 422.285(9). 

Evidence that is favorable but merely impeaches, and thus falls short of 

absolutely excluding the defendant, must be weighed against the other 

evidence in the case, much like the circuit court did here. In so doing, the court 

concluded that the DNA results that were obtained, and which were at best 

only slightly favorable, were insufficient to require reversal of Appellant's 

conviction. 

This Court cannot say the circuit court erred in so concluding in light of 

the totality of the evidence. Testing of the lost evidence could have been 

similarly "favorable." A circuit court is not required to speculate, and indeed 

should not, that lost, untested evidence could have exonerated a KRS 422.285 

petitioner and therefore reverse a conviction. Such rank speculation cannot be 

used to undermine a conviction and sentence that has, in all other respects, 

been upheld as fairly and lawfully obtained. This Court also declines to engage 

in such speculation. 

Appellant also generally argues that the trial court's finding that the 

evidence at trial was equally consistent with his guilt as with his theory that he 

had been framed requires reversal of his conviction in light of the lost 

evidence. 8But the trial court's finding in this regard was simply part of its 

8He also notes that the federal district court, in deciding his habeas petition, 

concluded similarly. It appears, however, that that court actually held that 

"significant evidence exists that is consistent with Mr. Moore's argument that Kenny 

Blair killed Virgil Harris." That finding does not go nearly as far as Appellant claims. 

That the federal district court denied habeas relief also belies his claim about the 

significance of the statement. 

26 
threshold finding about whether favorable DNA evidence would have a 

reasonable probability of being exculpatory. The trial court does not ordinarily 

get to review the weight of the trial evidence in a post-conviction collateral 

attack; absent new evidence, such claims are limited to direct appeals. The trial 

court in this case made its finding only in the limited context of Appellant's 

KRS 422.285 petition. 

Moreover, Appellant litigated his alternative perpetrator theory in his 

trials, but the juries simply did not believe his evidence. See Moore, 983 S.W.2d 

at 482. Though Appellant claims that Blair's alibi was proven false after trial, 

this claim has also already been litigated, in his state collateral attack, and 

found to be without merit. See id. 

In the appeal of that decision, this Court, in a unanimous decision 

authored by then Justice Stumbo, held that the new evidence tending to 

impeach Blair's alibi, along with new evidence that Blair supposedly admitted 

to a set-up to additional witnesses, was insufficient to require relief under RCr 

11.42 (specifically, a claim of ineffective assistance of counsel) or CR 60.02. Id. 

b. Appellant Was Not Entitled to an Evidentiary Hearing to Examine 

Whether the Commonwealth Acted in Bad Faith. 

In the alternative, Appellant asks this Court to remand this case to the 

trial court for an evidentiary hearing to determine whether the missing 

evidence was lost or destroyed in bad faith. Appellant cites no authority for this 

request. 

27 
The United States Supreme Court has held that a criminal defendant's 

due process rights can be violated by "failure to preserve potentially useful 

evidence" but only where "a criminal defendant can show bad faith on the part 

of the police." Arizona v. Youngblood, 488 U.S. 51, 58 (1988). But such claims 

usually arise in the course of trial, where the defendant has access to some 

discovery mechanisms, can demonstrate the police's bad faith if there is 

evidence of it, and has the protection of the full panoply of due process rights, 

including the right to material evidence under Brady v. Maryland. 

The issue in this case has only arisen in the course of a post-conviction 

collateral attack. As this Court recently noted, "a person already convicted in a 

fair trial cannot claim the same liberty interest as a person first standing trial." 

Bowling, S.W.3d at , 2010 WL 3722283, at * 3 (citing Osborne, 129 S. 

Ct. at 2320). "As such, a convicted person is not entitled to the 'familiar 

preconviction trial rights' in pursuit of a `postconviction liberty interest.' Trial 

rights, such as the one to disclosure of exculpatory evidence in Brady v. 

Maryland, 373 U.S. 83 .. . (1963), are simply inapplicable in the postconviction 

setting." Id. (quoting Osborne, 129 S.Ct. at 2319); see also. Osborne, 129 S.Ct. 

at 2320 ("Brady is the wrong framework."). Thus, it is questionable whether 

Appellant can even litigate a due process claim related to bad faith loss or 

destruction of evidence in the post-conviction context. 

Even assuming that such a claim can be made, Appellant has not met 

his initial burden, regardless of whether we assume that the issue is raised 

under KRS 422.285 or if we, as the circuit court did, treat this part of 

28 
Appellant's petition as a CR 60.02 motion (or another collateral attack 

procedure). The DNA testing statutes are a mechanism for seeking DNA testing 

(and possibly claiming exculpation after such a test) and nothing more. Relief 

for tangentially related claims, such as the loss of evidence, must be sought 

under another procedural mechanism. And to the extent that Appellant's 

motion can be construed as one under CR 60.02, the trial court was not 

required to give him a hearing at which he might discover that the police acted 

in bad faith in losing the shoes and pants. The burden is on the Appellant to 

present evidence of bad faith before he can claim a due process violation in 

such a proceeding (and, then, only to the extent that he can claim a limited due 

process right). So far, he has not even alleged that the evidence was lost or 

destroyed in bad faith, having only hinted at the possibility of a grand 

conspiracy to hide the evidence after the motion for DNA testing was granted. 

What evidence the circuit court did have—an extensive search for the items 

similar to that discussed in Taylor, 291 S.W.3d at 695 (citing Arey v. State, 929 

A.2d 501 (Md. 2007)), and that more than a dozen other items, including other 

clothing, were found and available for testing—supported a finding only of good 

faith. Appellant is not entitled to an evidentiary fishing expedition to satisfy his 

curiosity. See id. ("Obviously, the Commonwealth merely made a mistake in 

incorrectly transcribing the list of remaining evidence. Thus there is no valid 

argument that there was improper destruction of evidence regarding the 

swab."). 

29 
2. Appellant Is Not Entitled To A New Trial Simply Because Another 

Person's DNA Was Found On Clothing Worn By The Killer. 

Appellant also claims that he should be granted a new trial because 

another person's DNA was found on some of the clothing worn by the killer. In 

making this claim, Appellant emphasizes that his theory of the case has always 

been that another person, Kenny Blair, committed the crime; that substantial 

evidence supports this claim; and that as a result, the question of the identity 

of the killer is of paramount concern. He basically argues that the results 

showing the presence of another person's DNA are "favorable" to him and thus 

require reversal of his conviction and sentence under KRS 422.285. He also 

claims that executing him in the face of "a truly persuasive claim of actual 

innocence" would violate the Eighth Amendment. 

Though a trial court can vacate the conviction, among other things, "if 

the results of the DNA testing and analysis are favorable to the petitioner," KRS 

422.285(9), such action was not required in this case. The problem with 

Appellant's claim is that the DNA results here were not "favorable" to him. 

Though the tests demonstrated the presence of another person's DNA, they did 

not exclude his DNA. 9Much like in Bowling, "even if someone else's DNA was 

found on the [clothing], this would not exonerate Appellant, and even with an 

9 Moreover, the DNA found on the clothes has not yet been compared to anyone other 

than Appellant. No sample has been taken from Kenny Blair, nor is it likely that one 

can be procured, since he died in 1995 and was cremated. Appellant claims in his 

brief, however, that one of Blair's relatives has agreed to give a DNA sample and that 

a relative sample, while not perfectly capable of demonstrating that Blair was the 

source of DNA, can still produce significant results. That claim, however, does not 

appear to have been litigated at the circuit court, and this Court therefore cannot 

pass on the validity of such a comparison. 

30 
alternate perpetrator theory, the presence of someone else's DNA would not 

necessarily be exculpatory." Bowling, S.W.3d at , 2010 WL 3722283, at 

*6. The clothes admittedly did not belong to Appellant originally, and thus had 

likely been worn by someone else. Additionally, they had been left in a pile of 

other people's laundry. Worse still, having first been collected prior to the use 

of DNA testing, it is unlikely that any precautions were taken to prevent 

contamination of the evidence, and it is likely that the evidence has been 

handled by many people, including trial counsel, since then. These scenarios 

could explain the presence of another person's DNA on the clothing. 

Favorable results, at least in this scenario, would most likely require that 

Appellant be excluded as a source of DNA on the clothing, which would then 

demonstrate that he could not have worn them. Cf. Bedingfield v. 

Commonwealth, 260 S.W.3d 805, 814-15 (Ky. 2008) (ordering new trial where 

DNA evidence showed that semen in rape case was not from defendant). The 

circuit court noted this in its June 22, 2006 order. This focus on excluding 

Appellant, rather than showing the presence of another person's DNA, was 

proper. 

Additionally, the other evidence of Appellant's guilt as recounted by the 

trial court undermines what little favorableness could be gleaned from the 

presence of another person's DNA. Thus, without test results showing the 

absence of Appellant's DNA on the clothing, the mere presence of another 

person's DNA on the items would not be favorable. See Bowling, S.W.3d at 

, 2010 WL 3722283, at *6. ("Where there is enough other incriminating 

31 
evidence and an explanation for the DNA result, science alone cannot prove a 

prisoner innocent. The availability of technologies not available at trial cannot 

mean that every criminal conviction, or even every criminal conviction involving 

biological evidence, is suddenly in doubt.' (quoting Osborne, 129 S.Ct. at 

2316)). 

Moreover, it is not even clear that a test excluding Appellant would 

demonstrate his innocence. As Appellant himself has made much of, the 

biological materials on the evidence in this case have degraded over the last 30 

years, making basic DNA testing unhelpful. While advanced testing, such as 

Y-STR, might prove helpful, any results from such tests excluding Appellant 

would have to be evaluated in light of the degradation of the samples. In other 

words, that Appellant appears to be excluded could be a function of the 

degradation of the evidence rather than his innocence. Of course, the opposite 

could be true. No doubt, a court would need the assistance of expert testimony 

to navigate the bramble that such results would present. 

As for the claim that executing an innocent person would violate the 

Eighth Amendment, it is enough to note that the DNA evidence has thus far 

failed to demonstrate Appellant's innocence. 10This is especially the case since 

1 ° As for the existence of such a right, the United State Supreme Court has stated: 

As a fallback, [the defendant] also obliquely relies on an asserted federal 

constitutional right to be released upon proof of "actual innocence." 

Whether such a federal right exists is an open question. We have 

struggled with it over the years, in some cases assuming, arguendo, that 

it exists while also noting the difficult questions such a right would pose 

and the high standard any claimant would have to meet. In this case too 

we can assume withoirt deciding that such a claim exists, because even if 

so there is no due process problem. 

Osborne, 129 S. Ct. at 2321-22 (citations omitted). 

32 
the "threshold showing" for any right to demonstrate innocence is 

"extraordinarily high." Herrera v. Collins, 506 U.S. 390, 417 (1993). Moreover, 

as to the claim that an Eighth Amendment right to demonstrate innocence, 

should it exist, requires further DNA testing beyond that required by KRS 

422.285, we note that we have already held that no such additional right to 

DNA testing exists because it is merely a due process right that is satisfied by 

the statutory mechanism in place. See Bowling, S.W.3d at , 2010 WL 

3722283, at *4 ("Appellant also argues that he is entitled to DNA testing under 

the Eighth Amendment, which he claims includes a right against the execution 

of an innocent person. He argues that DNA testing, which might demonstrate 

his innocence, is necessary to vindicate this Eighth Amendment right. First, 

`[w]hether such a federal right [to be released upon proof of actual innocence] 

exists is an open question,' which the Supreme Court declined to decide in 

Osborne. Second, and more importantly, because this claim is one for a 

procedure needed to effectuate another right, it is actually a due process claim, 

where the substantive right (or liberty interest) to be protected stems from the 

Eighth Amendment. As noted above, there is no substantive due process right 

to DNA testing, nor is there a procedural due process right to anything beyond 

what KRS 422.285 currently provides. The absence of a federal constitutional 

right to postconviction DNA evidence forecloses [Appellant's] Eighth 

Amendment claim, which rested upon his due process argument."' (quoting 

Osborne, 129 S.Ct. at 2316; Young v. Philadelphia County Dist. Attorney's 

Office, 341 Fed:Appx. 843, 846 (3d Cir. 2009)). 

33 
3. A Circuit Court Can Order Outside Testing Under KRS 422.285. 

Appellant argues that the trial court erred by failing to order more 

advanced testing of the items by an outside lab and by failing to release the 

items to him so that he could pursue independent testing on his own. He also 

argues that disallowing the outside testing violates due process. Because these 

issues are at least interrelated and are, to some extent, actually the same 

claim, we address them together. 

Appellant asked the trial court to allow testing by an outside laboratory, 

Orchid Celimark Laboratory, because it could perform the more advanced YSTR form of DNA testing that the KSP Laboratory is not equipped for." 

Though the Commonwealth opposed this motion quite vigorously, Orchid 

Celimark is, ironically, a contractor for the KSP Laboratory and has been used 

by the KSP Laboratory to perform testing in the past. See Taylor, 291 S.W.3d at 

694 (noting that the Commonwealth sent a sample to Orchid Celimark for STR 

testing in that case). Of course, Appellant also later complained about whether 

Orchid Celimark was a reliable laboratory, though he does not appear to have 

maintained those concerns on appeal. 

Nevertheless, the trial court held that it did not have any,authority to 

order DNA testing by an outside laboratory. In reaching that conclusion, the 

court relied on KRS 422.285, 17.176, and 524.140. The court also declined to 

order the release of the evidence to Appellant, because ordering independent 

testing was beyond its power (since release of the evidence was simply a way to 

"As discussed above, Appellant also asked for mitochondrial DNA testing, though his 

later trial motions focused on Y-STR testing. 

34 
obtain independent testing) and the motion was filed after its jurisdiction had 

ceased. 

KRS 422.285, of course, lays out the main procedures for obtaining postconviction DNA testing in capital cases. Most of the statute's requirements are 

discussed in Bowling and need not be reconsidered here, since the circuit court 

already ordered testing pursuant to the statute and the testing was performed 

to the extent possible. 

KRS 17.176 does a number of things related to the testing process laid 

out in KRS 422.285. First, as noted in Bowling, it imposes additional 

requirements on a petition under KRS 422.285 (and 422.287). See KRS 

17.176(1) ("In addition to the requirements specified in KRS 422.285, any 

evidence submitted for testing and analysis pursuant to KRS 422.285 or 

422.287 shall . . . ."). These additional requirements are not at issue here. 

However, the other sub-sections of KRS 17.176 are germane to this case. 

Subsection (3) states, 

The defense, with a court order issued pursuant to this section, 

may submit not more than five (5) items of evidence for testing and 

analysis by the Department of Kentucky State Police forensic 

laboratory or another laboratory selected by the Department of 

Kentucky State Police forensic laboratory without charge. The cost 

of testing and analysis of any item of evidence in excess of the five 

(5) initial items to be tested and analyzed shall be borne by the 

agency or person requesting the testing and analysis. Any 

additional item of evidence submitted for testing and analysis shall 

be accompanied by the court order specified in subsection (1) of 

this section. 

35 
KRS 17.176(3). 12The circuit court read this as requiring that any testing be 

done by the KSP Laboratory or its designee. In support of this conclusion, the 

court noted that KRS 524.140 regulates the KSP Laboratory's conduct in 

handling and keeping evidence that might be tested for DNA and emphasizes 

that such evidence should not be mishandled or destroyed. 13 

Were these provisions the only applicable ones, the circuit court's 

reading of them as limiting its power might be reasonable. 14The circuit court, 

however, overlooked other provisions, specifically, a catch-all in KRS 422.285. 

Subsection (7) of that statute states, "The court may make any other orders 

that the court deems appropriate, including designating any of the following: (a) 

The preservation of some of the sample for replicating the testing and analysis; 

12Subsection (2) reads similarly, but applies to the prosecution. Subsection (4) also 

reads similarly, but applies to "[a]ny other party in a criminal case, with permission 

of the court after a specific showing of necessity for testing and analysis, together 

with the items specified in subsection (1) of this section" and requires that the party 

pay for the testing. 

13The Commonwealth also cites KRS 422.287, which states that testing under that 

statute shall be done by the Department of Kentucky State Police laboratory or at 

another laboratory selected by the Department of Kentucky State Police laboratory." 

KRS 422.287(3). That statute, however, applies only to a situation where "a person is 

being tried for a capital offense and there is evidence in the case which may be 

subjected to deoxyribonucleic acid (DNA) testing and analysis." KRS 422.287(1) 

(emphasis added). Basically, the statute applies only to pre-conviction testing, 

usually prior to trial, and its requirements do not control post-conviction proceedings 

under KRS 422.285. 

14Of course, such a reading does not take into account Appellant's argument that the 

courts have the inherent power, under Section 109 of the Kentucky Constitution, to 

order outside testing, release evidence, etc. Given this Court's resolution of the 

matter under the statutes, however, it need not address Appellant's constitutional 

claim. We note in passing, however, that DNA testing has been allowed by trial 

courts, without substantial challenge by the Commonwealth, in even some noncapital cases, for which there is not specific statutory authorization. See, e.g., 

Bedingfield v. Commonwealth, 260 S.W.3d 805 (Ky. 2008) (discussing the effect of 

post-conviction DNA testing used to support a motion for a new trial and reversing 

because the DNA testing excluded the defendant). 

36 
and (b) Elimination samples from third parties." (Emphasis added.) This is a 

fairly broad power and clearly anticipates, in subsection (a), that the initial test 

by the KSP Laboratory may not be the end of the story. 

In fact, at least one other provision, KRS 524.140(5)(c), anticipates the 

possibility of independent testing, at least after the initial KSP Laboratory 

testing. KRS 524.140(5) notes that DNA testing "consumes and destroys a 

portion of the evidence or may destroy all of the evidence if the sample is 

small." To that end, subsection (5) bars liability for the destruction of evidence 

in the testing process under certain conditions, including "[i]f the Department 

of Kentucky State Police laboratory knows or reasonably believes that so much 

of the biological material or evidence may be consumed or destroyed in the 

testing and analysis that an insufficient sample will remain for independent 

testing and analysis that the laboratory follows the procedure specified in 

paragraph (b) of this subsection." KRS 524.140(5)(c) (emphasis added). 

The broad power given to the circuit court by KRS 422.285(7) when 

considering a capital post-conviction DNA petition, especially in light of the 

explicit mention of "independent testing" in KRS 524.140(5)(c), means that KRS 

17.176 cannot be read as the circuit court did in this case. Instead, KRS 

17.176 is primarily about two things: imposing a "probativeness" requirement, 

KRS 17.176(1), and designating who pays for DNA testing that is done by the 

KSP Laboratory, KRS 17.176(2) - (5). Certainly, the statute anticipates that 

testing will ordinarily be done by the KSP Laboratory or its designee, and may 

even evince a preference that testing be done there, but it does not impose a 

37 
limit on who may test, nor does it require that testing be performed by the KSP 

Laboratory or a lab of its choice in all cases. Instead, whether to order 

independent or outside testing falls within the sound discretion of the circuit 

court. 15To the extent that the circuit court ruled that it had no power to order 

such testing, it erred as a matter of law. 

This is not the end of the inquiry, however. In addition to ruling that it 

had no power to order independent testing, the circuit court also stated in its 

June 22 order that "there has been no allegation of fault or bias on the part of 

KSP that would persuade the Court to consider a change not specifically 

authorized by statute." In so stating, the court implied that even if it had the 

power to order outside testing, it would not have done so absent a showing of 

bias or fault on the part of the state. Such a showing, however, is not required, 

though the court may certainly consider fault or bias as a factor in deciding 

whether to order independent testing. The only limit on the court's power to 

order outside testing is that it may do so only if it "deems [such testing] 

appropriate." KRS 422.285(7). 

Such testing may be appropriate for a number of reasons other than the 

presence of fault or bias. For example, the KSP Laboratory may have a backlog 

of work that would prevent it from complying with the court's order to perform 

15Interestingly, this Court has already had a case in which independent testing was 

requested, specifically because the state's chosen laboratory could not perform the 

requested testing. See Taylor, 291 S.W.3d at 694. In that case, the circuit court 

ordered the state lab to send evidence to Bode Technology Group for "mini STR 

testing," which is apparently yet another form of advanced STR testing, after the 

state's contractor, Orchid Cellmark Laboratory, was unable to get results using 

"standard STR testing." 

38 
DNA testing in a reasonably speedy manner. Or, as was the case here, the KSP 

Laboratory and its designees may simply not be equipped to perform the type of 

testing requested by the DNA petitioner, even though the court believes the 

alternative testing is valid enough to satisfy the Daubert requirements. 

Of course, the mere fact that alternative or more advanced DNA testing is 

available at an outside laboratory does not mean that a circuit court is required 

to order it, especially where so-called standard DNA testing has already been 

performed, as was the case here. A KRS 422.285 petitioner must demonstrate 

that the requested alternative testing is better suited to demonstrating the 

truth given the circumstances of the evidence than the standard DNA testing 

performed by the KSP Laboratory. This concern is driven by the fact that 

certain types of DNA testing appear to be useful only in certain circumstances. 

For example, Y-STR testing, which has been requested in this case, appears to 

have limited usefulness in identifying someone by a DNA match, but it may be 

useful for excluding a person. See, e.g., State v. Calleia, 997 A.2d 1051, 1063-

64 (N.J. Super. Ct. App. Div. 2010). 16Appellant, of course, argued to the trial 

16The New Jersey court explained the usefulness and limits of Y-STR testing as 

follows: 

Autosomal STR DNA analysis is problematic, however, when forensic 

scientists are confronted with a mixed DNA sample. For example, blood 

stains found at a crime scene may be the result of bleeding by both the 

victim and the perpetrator. An autosomal STR DNA profile generated 

from the stains will have a combination of both individuals' DNA patterns 

and it is not possible to attribute which traits go with which person. 

Further, one individual's profile often overwhelms the other and renders 

it un-detectible. When one individual is male and one is female, however, 

it is possible to perform a Y-STR DNA analysis and focus solely on the 

DNA of the male. Thus, the strength of Y-STR DNA testing derives from 

the fact that only males have a Y chromosome. Unfortunately, that fact is 

also the source of the test's weakness. 

39 
court the Y-STR testing would be useful in this case for purpose of exclusion, 

but such a claim must be supported by expert proof about the usefulness of 

the proposed testing. 

The question, then, is whether the circuit court abused its discretion in 

nevertheless denying the outside testing. Though we are reluctant to do so, this 

Court concludes that the circuit court did abuse its discretion in a limited 

fashion. A court abuses its discretion when, among other things, its "decision . 

.. was unsupported by sound legal principles." Miller v. Eldridge, 146 S.W.3d 

909, 914 (Ky. 2004) (quoting Goodyear Tire and Rubber Co. v. Thompson, 11 

S.W.3d 575, 581 (Ky. 2000)). This includes "'application of the wrong legal 

principle,"' id. at 915 n.11 (quoting Zervos v. Verizon New York, Inc., 252 F.3d 

163, 168-69 (2nd Cir. 2001)), or the "wrong legal standard," id. at 921. 

Because only males possess Y chromosomes, a mother does not 

contribute to the genetic code of her son's Y chromosome. The DNA 

sequence on the Y chromosome is passed in complete form from 

grandfather, to father, to son and on down the male lineage. The Y 

chromosome loci are not independent of one another and there is no 

recombination of DNA. It is strictly a male marker and there is no 

randomness on the chromosomes. Consequently, the product rule used 

to generate probabilities for autosomal STR DNA analysis is inapplicable 

to Y-STR DNA analysis. In other words, barring random mutations, all 

men in a paternal lineage will possess the same Y-STR DNA profile. 

Thus, fathers, sons, brothers, uncles, and paternal cousins cannot be 

distinguished from one another through a Y-STR DNA profile. 

For this reason, Y-STR DNA testing has limited usefulness in positively 

identifying an individual. The testing is extremely useful, however, in 

excluding someone since an individual cannot be the source of the DNA 

if the profiles do not match. If the Y-STR DNA profiles do match, then all 

that can be said is that the individual cannot be excluded as the DNA 

donor. 

State v. Calleia, 997 A.2d 1051, 1063-64 (N.J. Super. Ct. App. Div. 2010). 

40 
The circuit court in this case applied the wrong legal standard in two 

ways. First, it concluded that it did not have the power to order independent 

testing, which no doubt forestalled its full consideration of whether such 

testing was appropriate in this case. And, second, it limited its alternative 

consideration, even in the face of the presumed lack of power to order 

independent testing, to whether the KSP Laboratory was biased or at fault. As 

noted above, the circuit court may, and indeed should, also consider other 

factors in deciding whether to allow independent testing. 

This does not mean, however, that this Court will, or should, order 

independent testing at this point. As noted above, the discretion to make that 

decision lies initially with the circuit court, which is better equipped to evaluate 

the totality of the circumstances. Thus, it is necessary to remand this matter to 

the circuit court to consider Appellant's requests for independent testing in 

light of the factors outlined above and any other factors that the circuit court 

deems appropriate. At a minimum, this will require proof from Appellant that 

the requested alternative DNA testing can show something more than has 

already been shown by the normal testing already done by the KSP Laboratory. 

The Appellant's assertions about the utility of such testing alone are 

insufficient; some expert proof is also required. 

This analysis also applies to the circuit court's decision whether to order 

the release of evidence for testing directly to a party. Unless it violates some 

other statute, the broad power in KRS 422.287(7) would include ordering the 

release of evidence. However, there are usually better options that avoid the 

41 
possibility that a petitioner, into whose possession the evidence would fall, 

could damage the evidence, even in the face of laws against tampering with 

evidence. The most obvious—and clearly superior—alternative would be to 

order the KSP Laboratory to send the materials directly to the outside 

laboratory that the petitioner wants to perform the test. Presumably, such an 

outside laboratory will have sufficient protocols in place to maintain the 

integrity of the evidence. And if it does not, then that factor should weigh 

heavily in the circuit court's initial decision whether to order testing at such a 

facility. 

One additional, somewhat delicate question about preserving evidence 

remains. As noted above, KRS 524.140 imposes a number of requirements on 

the KSP Laboratory, all of which are aimed at preserving evidence. This statute 

appears only to bind the KSP Laboratory, and not an outside laboratory. 

Presumably, since several statutes note that the KSP Laboratory may employ 

an outside laboratory, e.g., KRS 17.176(2), (3), (4) ("or another laboratory 

selected by the Department of Kentucky State Police forensic laboratory"), the 

requirements of KRS 524.140 would apply with equal force to any outside 

laboratory acting as the agent of the KSP Laboratory. This may counsel in favor 

of a circuit court ordering so-called independent testing to be done by a 

laboratory that already contracts with the KSP Laboratory, rather than a true 

outsider, especially since that prior relationship could also be a proxy for the 

outside laboratory's reliability. That would make this case easy, since the 

42 
Appellant has asked for exactly that: testing by an outside laboratory that 

already works for the KSP Laboratory. 

However, even if the court were to choose a laboratory that does not have 

an existing relationship with the KSP Laboratory, the court could alleviate most 

concerns by simply incorporating the requirements of KRS 524.140 into its 

order. 

Finally, because this court is remanding the case to the circuit court, its 

earlier ruling that it had no jurisdiction to consider the earlier motion to release 

the evidence is rendered moot, since that court will regain jurisdiction. Should 

Appellant make a timely motion for release of the evidence on remand, the 

court should consider it. This Court also notes, however, that the trial court 

retained jurisdiction to rule On Appellant's motion because his motion to 

proceed in forma pauperis had not yet been decided, meaning his notice of 

appeal had been tendered but was not considered "filed." See RCr 72.02(1)(b) 

("If timely tendered and accompanied by a motion to proceed in forma pauperis 

supported by an affidavit, a notice of appeal or cross-appeal shall be 

considered timely but shall not be filed until the motion to proceed in forma 

pauperis is granted or, if denied, the filing fee is paid."). 

B. The Commonwealth's Cross-Appeal 

In its cross-appeal, the Commonwealth argues that laches bars all of 

Appellant's claims; that the trial court erred in ordering any DNA testing; that 

the trial court erred in denying its motion to reconsider the order to test the 

pants and shoes that were eventually found to be lost; that the trial court erred 

43 
in not requiring Appellant to submit to DNA testing; and that the trial court 

erred in allowing Appellant to submit a self-collected DNA sample. We address 

each claim in turn, to the . extent necessary. 

1. Laches Does Not Bar Appellant's KRS 422.285 Petition. 

The Commonwealth claims that Appellant's entire request for DNA 

testing under KRS 422.285 should have been barred by the equitable doctrine 

of laches. The DNA testing statutes were enacted in 2002, see 2002 Ky. Acts. 

ch.154, § 1-10, but Appellant did not file his petition until 2006, several 

months after the Sixth Circuit resolved his federal habeas action and only a few 

days after the Attorney General requested that the Governor issue a death 

warrant for Appellant's execution. The Commonwealth alleges that this timing 

was not a coincidence and was actually part of a concerted effort at delay, 

which should bar the claim under laches. 

This Court will not apply the doctrine of laches to claims under the postconviction DNA testing statute. Not only does the statute not include a 

limitation period, as most collateral attack procedures do, see, e.g., RCr 11.42 

(requiring most filings within three years), the statute specifically says that a 

petition can be filed "[a]t any time" after conviction of and sentencing to death 

for a capital offense, KRS 422.285(a). This reflects a policy decision by the 

General Assembly to allow death row petitioners to seek DNA testing even at a 

late date. It is not clear that this—or any—court should act in chancery in 

direct contravention of a statutory mandate. 

44 
But this Court need not decide the wisdom of employing its equitable 

powers in this situation, as the Commonwealth has not shown the required 

elements of laches. "[This doctrine serves to bar claims in circumstances 

where a party engages in unreasonable delay to the prejudice of others 

rendering it inequitable to allow that party to reverse a previous course of 

action." Plaza Condominium Ass'n, Inc. v. Wellington Corp., 920 S.W.2d 51, 54 

(Ky. 1996). If no limitation period has passed, and presumably where there is 

no such period, "one claiming a bar based on delay must also show prejudice." 

Id. 

The Commonwealth claims prejudice to its interest in the finality of 

judgments and from the deterioration of DNA on the evidence between 2002 

and 2006, but neither claim is convincing. If finality of judgments is the type of 

interest that can be prejudiced by delay, then almost every collateral attack on 

a judgment or final order would fail under the doctrine. The doctrine of laches 

applies mostly to claims that might result in a judgment or order that decides 

the rights and obligations of the parties. 

While finality of judgments is obviously an important interest, it only 

comes into play after the rights of the parties have been decided, and therefore 

should not be grounds for invoking laches. And any prejudice that might 

result from deterioration of the DNA during the delay will affect the petitioner 

more than the Commonwealth, since he bears the burden post-trial of 

demonstrating innocence or some lesser exculpation. Any deterioration makes 

that burden all the more difficult on a petitioner. As such, this Court discerns 

45 
no actual prejudice to the Commonwealth and will not resort to laches to bar 

Appellant's claim. 

Finally, to the extent that the Commonwealth claims a specific interest in 

the execution of death sentences, it seems that any prejudice here is minimal 

and is outweighed by the Commonwealth's concomitant duty to pursue justice 

and serve the law, which is owed to everyone in this Commonwealth, including 

criminal defendants and convicted persons. Cf. Berger v. United States, 295 

U.S. 78, 88 (1935) ("The [prosecutor] is the representative not of an ordinary 

party to a controversy, but of a sovereignty whose obligation to govern 

impartially is as compelling as its obligation to govern at all; and whose 

interest, therefore, in a criminal prosecution is not that it shall win a case, but 

that justice shall be done. As such, he is in a peculiar and very definite sense 

the servant of the law, the twofold aim of which is that guilt shall not escape or 

innocence suffer. He may prosecute with earnestness and vigor—indeed, he 

should do so. But, while he may strike hard blows, he is not at liberty to strike 

foul ones. It is as much his duty to refrain from improper methods calculated 

to produce a wrongful conviction as it is to use every legitimate means to bring 

about a just one."). 

Moreover, it is not even clear that a KRS 422.285 petition will necessarily 

cause any delay, since the filing of a petition does not work to stay an 

execution. Rather, a specific order from the court, or an appellate court, would 

be required. Without such an order, the filing of a petition would have no effect 

and would become, in essence, a race against the clock. And in deciding 

46 
whether to issue such a stay order, a court is free to consider any delay in 

filing and look into whether the petitioner intentionally sat on his rights, filed 

only as a delay tactic (e.g., when an execution has already been scheduled), or 

any other relevant factor. 

2. The Circuit Court Did Not Err in Ordering Testing. 

The Commonwealth also argues that the trial court erred in ordering 

DNA testing at all in this case. In support of this, the Commonwealth claims 

that there was no reasonable probability that Appellant would not have been 

prosecuted or convicted if exculpatory DNA results had been obtained. The 

Commonwealth also complains that the trial court should have been required 

to make individual findings as to each piece of evidence to be tested, which was 

not done in this case. 

To the extent that this argument is aimed at the testing that has already 

been done, it is moot. The testing cannot now be undone, nor should the 

results of the testing be ignored by a court if they are probative of innocence or 

otherwise favorable to the Appellant, even if ordered in error. Cf. Bowling, 

S.W.3d at , 2010 WL 3722283, at *6 Mt is questionable whether the trial 

court was correct in allowing DNA testing in the first place, but if the decision 

is error, it is harmless."). 

To the extent that the trial court may order additional testing based on 

its previous findings on remand, however, this Court concludes that its 

findings are not clearly erroneous. The trial court found both a "reasonable 

probability" that Appellant would not have been prosecuted or convicted if 

47 
exculpatory results had been obtained through DNA testing and analysis under 

KRS 422.285(2)(a), and that the verdict would have been more favorable if the 

DNA results had been available at trial under KRS 422.285(3)(a). The 

Commonwealth presumes that the favorable results would at best show that 

Kenny Blair contributed DNA to clothes. 

But evaluating that claim now, before such "favorable findings" have 

been returned, is premature. Moreover, favorable results could also have 

excluded Appellant completely. 17In light of this simple logic, and the totality of 

the record, this Court concludes that the circuit court's findings were 

supported by substantial evidence and were not clearly erroneous. 

Also, this Court concludes that a circuit court need not necessarily make 

separate findings for each piece of evidence to be tested. The Commonwealth's 

concern here, of course, is that a blanket finding by the trial court might allow 

testing of an overwhelming number of items. The easy solution, of course, is to 

allow the trial court to limit the number of items to be tested. Or, if the trial 

court chooses, it can make findings as to specific items of evidence and 

conclude that some should be tested and others not tested. These decisions, 

too, fall within the sound discretion of the trial court. 

Finally, this Court need not now engage in an extended discussion of 

how KRS 422.285 and 17.176 should work, as it has recently provided the 

17 Indeed, the circuit court noted in its June 22, 2006 order requiring testing that 

exclusion of Appellant is the main thrust of this case. This properly narrowed the 

scope of the initial testing to be done and helps frame the Appellant's required 

showing on remand about the utility of alternative testing, which must be able to 

demonstrate exculpation in some degree, which the testing performed so far has 

failed to do. 

48 
lower courts and the bar such guidance. See Bowling, S.W.3d at , 2010 

WL 3722283, at *4-*5. The circuit court's proceedings in this case complied 

subStantially with the requirements of those statutes, as interpreted in 

Bowling, and therefore were not erroneous. 

3. The Circuit Court Did Not Err in Denying the Commonwealth's Motion 

to Reconsider Its Order to Test the Pants and Shoes. 

The Commonwealth also argues that the circuit court erred by denying 

its motion to reconsider the order to test the pants and shoes that turned out 

to have been lost. The circuit court resolved this motion by ruling that it was 

moot after the pants and shoes were shown to be missing. This Court agrees. 

Given that compliance with the order was literally impossible and, as a result, 

the trial court declared it moot, it is clear that the Commonwealth was not even 

aggrieved by the order. 

However, that the Commonwealth has raised this issue provides an 

opportunity for this Court to comment on a point of civil procedure. The 

Commonwealth appeals the denial of a so-called motion to reconsider, which 

the circuit court noted "recite[d] arguments that . . . [it had] rejected on two 

prior occasions and the [c]ourt [wa]s not inclined to re-visit . . . without case 

law authorizing it to do so." Motions such as this merely asking the trial court 

to change its mind have become a very common practice in the circuit courts of 

this Commonwealth, and indeed several such motions, from both sides, were 

filed in this case. 

49 
Such repetitious motions are improper. While it is true that under CR 

54.02 the trial court retains broad discretion to revisit its interlocutory rulings 

at any time prior to the entry of a final judgment, that discretion is properly 

invoked only when there is a bona fide reason for it, i.e., a reason the court has 

not already considered. See Tax Ease Lien Investments 1, LLC v. Brown, 340 

S.W.3d 99 (Ky. App. 2011); Bank of Danville v. Farmers National Bank of 

Danville, 602 S.W.2d 160 (Ky. 1980). Otherwise a motion to reconsider 

amounts to no more than badgering the court, a practice that could well be 

deemed a violation of Civil Rule 11. The bench and bar are admonished to take 

notice that this practice of filing multiple vexatious motions to reconsider is not 

supportable under the Civil Rules and should be discontinued. 

4. The Trial Court Did Not Err in Dealing With Appellant's DNA Sample. 

Finally, the Commonwealth claims that the trial court erred in not 

requiring the Appellant to submit a DNA sample and by later allowing testing of 

Appellant's self-collected sample. Whether and when to order the collection of a 

sample of a KRS 422.285 petitioner's DNA also falls within the sound 

discretion of the trial court. So, too, does allowing the testing of a self-collected 

sample submitted by a petitioner's counsel. While this latter practice may not 

be the best one, since it presents a greater possibility for mischief, this Court is 

convinced that a trial court is sufficiently cognizant of the risks of such selfcollection to take steps to minimize them. 

For example, the court could require that Appellant's counsel procure the 

sample and submit it as an officer of the court. Indeed, that appears generally 

50 
to have happened in this case, though not pursuant to an order. And if such a 

self-collected sample leads to favorable DNA results, a circuit court could 

always order a petitioner to submit a new sample under the supervision of the 

KSP Laboratory or its agent for further testing as a hedge against possible 

shenanigans. We cannot say that the circuit court abused its discretion here, 

either in declining to order Appellant to submit a DNA sample at the time it 

was first requested or later allowing the use of his self-collected one. It is 

equally true that the trial court would have been within his discretion if he had 

ordered testing instead of accepting the self-collected sample. The point is that 

the trial court must manage the testing process, and we perceive no error 

concerning this. 

III. Conclusion 

The circuit court did not err in refusing to vacate Appellant's conviction 

and sentence of death or in refusing to hold an evidentiary hearing, though it 

abused its discretion in its handling of Appellant's requests for independent 

DNA testing. The issues raised by the Commonwealth in its cross-appeal are 

without merit. For these reasons, the orders of the Jefferson Circuit Court are 

affirmed in part, reversed in part, and remanded for further proceedings 

consistent with this opinion. 

Minton, C.J.; Abramson and Venters, JJ., concur. Cunningham, J., 

concurs in part and dissents in part by separate opinion in which Schroder 

and Scott, JJ., join. 

51 
CUNNINGHAM, J., CONCURRING IN PART AND DISSENTING IN PART: 

Over thirty years ago, on August 10, 1979, in Louisville, Kentucky, 77-year-old 

Virgil Harris was leaving the A & P grocery store after buying bananas for his 

ice cream shop located on Seventh Street. Shortly before noon, as he was 

walking from the grocery store across the parking lot, he encountered the 

Appellant, Brian Keith Moore. Moore had been out of the penitentiary for less 

than two years, having served out on charges of first-degree robbery, seconddegree assault, and escape. Moore abducted Mr. Harris at gunpoint and drove 

away in his 1978 maroon Buick to the Jefferson Hill Road. There, in a remote 

area, Moore pushed Mr. Harris down an embankment and fatally shot him four 

times in the head at close range. Moore stole Mr. Harris's watch and wallet, as 

well as his car. He then drove the victim's car to the home of his friends, 

Kenny Blair and Lynn Thompson, where he had stayed the night before. He 

brought with him a paper sack containing a money bag, a gun, a clip, and 

several rolls of coins. He even had the bananas. 

How do we know all this? Because Brian Keith Moore has told us so 

several times. He confessed to Kenny Blair and Lynn Thompson, as well as 

three police officers. He also made incriminating statements in front of a 

correctional officer. According to the correctional officer, Moore bragged about 

killing a policeman's father, and he found Mr. Harris's final death throes 

humorous. We don't even have to take Moore's word for it. 

The jury learned that a person meeting Moore's description had been 

observed abducting Mr. Harris. Moore was seen driving the victim's car. His 

52 
fingerprints were found inside the victim's car, as well as on a roll of coins 

taken from Mr. Harris. Moore was wearing the victim's wristwatch. There was 

gunpowder residue on Moore's hands. Soil samples on Moore's clothes 

matched that where the victim's body was found. Ballistics testing of the gun 

Moore was carrying matched up to the bullets which killed Mr. Harris. 

Brian Keith Moore received two jury trials. The first case was reversed 

because the jury learned that his main alibi witness was an ax murderer. 

I recount all of this history to remind ourselves of the overwhelming 

evidence of guilt against Moore and the long, tortuous road this case has 

taken. Two juries have given him the death penalty. Yet, here we are three 

decades after the murder of his elderly victim sending it back again for more 

findings by the trial court. 

Justice Noble does her typically splendid job of covering all the complex 

issues raised in this case. In fact, as the reader will see, I glean much of her 

excellent writing to support my position. I part ways, however, with her and 

the majority regarding the issue of remanding the case back for further 

findings by the trial court concerning the DNA. The value of any evidence that 

can possibly be secured by another hearing is highly questionable. Says the 

majority through the writing of Justice Noble: "Moreover, it is not even clear 

that testing that excluded Appellant would demonstrate his innocence. As 

Appellant himself has made much of, the biological materials on the evidence 

in this case have degraded over the last 30 years, making basic DNA testing 

unhelpful." 

53 
In dealing with the new trial issue, the majority also states: 

Though the tests demonstrated the presence of another 

person's DNA, they did not exclude his DNA. (Footnote 

omitted). Much like in Bowling, "even if someone else's DNA 

was found on the [clothing], this would not exonerate 

Appellant, and even with an alternate perpetrator theory, 

the presence of someone else's DNA would not necessarily 

be exculpatory." (Citation omitted). The clothes admittedly 

did not belong to Appellant originally, and thus had likely 

been worn by someone else. Additionally, they had been left 

in a pile of other people's laundry. Worse still, having first 

been collected prior to the use of DNA testing, it is unlikely 

that any precautions were taken to prevent contamination of 

the evidence, and it is likely that the evidence has been 

handled by many people, including trial counsel, since then. 

These scenarios could explain the presence of another 

person's DNA on the clothing. (Emphasis added.) 

Once again, I have to ask. Why are we sending it back for more findings 

to determine if there should be more testing? The logic escapes me. The 

majority makes it clear that any evidence of another person's DNA on the 

evidence would be of no consequence. I would only add that the dead Blair is 

the alternate perpetrator put forth by Moore. Since he was cremated, no 

positive match can be made, even through his nephew. At most, the only 

determination a test could show with complete certainty is whether the DNA on 

the evidence was from a person related to the nephew. See generally Frederick 

R. Bieber, Charles H. Brenner 86 David Lazer, FINDING CRIMINALS THROUGH DNA 

OF THEIR RELATIVES, 312 SCI. 1315 (2006); Henry T. Greely, Daniel P. Riordan, 

Naibaa' A. Garrison 86 Joanna L. Mountain, FAMILY TIES: The Use of DNA 

Offender Databases to Catch Offenders' Kin 34 J.L. MED. 86 ETHICS 248 (2006). 

54 
Also, Moore was living with Blair and his girlfriend at the time of the murder, 

and it would not be particularly startling for Blair's DNA to appear. 

Yet, inexplicably we hold today that the trial court abused its discretion 

in failing to consider further testing. We are sending this case back on the very 

dubious and speculative grounds of wonder. We wonder what it might show. 

The Commonwealth has carried its burden of proof for thirty years. Is it 

not reasonable to conclude that after all these years it might have been the 

burden of Moore to have shown what favorable results could be exculpatory by 

further testing? He has not done that. 

While the trial Court did find that the requirement for DNA testing was 

met under KRS 422.285(2), no such finding was made as to the need for the 

special testing now being requested. Testing was ordered and conducted. Only 

the additional testing by Orchid Celimark Laboratory for a more advanced YSTR form of DNA testing was denied. And we hold in this very opinion that it is 

not required, at least as to Eighth Amendment claims: "[W]e note that we have 

already held that no such additional right to DNA testing exists because it is 

merely a due process right that is satisfied by the statutory mechanism in 

place." And, furthermore, we say: "Most of the statute's requirements are 

discussed in Bowling and need not be reconsidered here, since the circuit court 

already ordered testing pursuant to the statute and the testing was performed to 

the extent possible." (Emphasis added.) 

The advance of science in the area of DNA evidence is a welcomed tool in 

helping us discover the truth in criminal cases. This new technology should be 

55 
a means to justice, not an obstacle. Common sense has to dictate when that 

tool is meaningful. 

This case stands in stark contrast to another DNA case we reversed just 

last month. That was the case of John Roscoe Garland v. Commonwealth, --- 

S.W.3d ---- Nos. 2009-SC-000035-MR and 2009-SC-000361-MR (Ky. May 19, 

2011). Garland involved the murder of two people. However, the only evidence 

against Garland was the testimony of one person. That one incriminating 

person had a criminal record. Garland did not. Garland claimed it was the 

witness who committed the murders. Clutched in the hand of one of the 

victims was a clump of hair which did not match in color that of Garland. But 

it was the hair color of the incriminating witness and person accused by 

Garland. DNA testing was not available at that trial several years ago. But it is 

now. The determination of the owner of the hair found clutched in the dead 

victim's hand is pivotal to the guilt or innocence—yes, perhaps even the life or 

death—of Garland. I vigorously joined my other brothers and sisters on this 

Court in sending it back for DNA testing. Common sense dictated it. 

Not so in this case. 

I agree completely with the majority in finding that the trial court was in 

error in concluding that it was restricted to having the evidence examined by 

the Kentucky State Police Lab under KRS 17.176(3). Significantly, we are not 

sending the case back for retesting. We are sending it back for the trial court 

to consider Moore's request for retesting. The court has already considered it 

and denied it. Perhaps the additional testing was denied for the wrong reason, 

56 
but the denial was harmless for the following reasons: (1) as this Court has 

acknowledged, the 30-year-old evidence to be tested is degraded and 

contaminated substantially; (2) we have held that the presence of anyone else's 

DNA, especially in light of the age of the evidence, would not be exonerating; (3) 

positive DNA of Moore has never been found on the evidence and, therefore, no 

DNA evidence has ever been used to incriminate him; and (4) conclusions 

which might be reached by retesting that totally excluded Moore's DNA has no 

probative value. Such misreading of the statute by the trial court was 

obviously harmless because of our ruling in Bowling. The posture of this case 

makes any further examination unnecessary. 

I need not remind this Court that, in a death penalty case, there is 

nothing cursory about a remand. Nor should there be. We will not likely see 

this case again for two years. What additional issues will be deposited upon 

our door step when we see it again is beyond our prophetic powers. As I stated 

in my opinion concurring in part and dissenting in part in Bowling v. Kentucky 

Dept. of Corrections—which is still out there somewhere awaiting our further 

consideration—"There is no end to the creative mind of the condemned." 301 

S.W.3d 478, 493 (Ky. 2009). 

If we have seen a decline and endless delays in the application of the 

death penalty in recent years, it is not at the behest of citizens of this state or 

of this nation. The death penalty, authorized by our democratically elected 

legislature and mandated by the electorate, is being slowly strangled by the 

57 
lack of common sense from both state and federal appellate courts. I am afraid 

that our decision today is another such example. 

Therefore, I concur in all but the remand, to which I respectfully dissent. 

Schroder and Scott, JJ., join. 

COUNSEL FOR APPELLANT/CROSS-APPELLEE: 

David Hare Harshaw, III 

Assistant Public Advocate 

Department of Public Advocacy 

207 Parker Drive, Suite 1 

LaGrange, Kentucky 40031 

David Michael Barron 

Department of Public Advocacy 

Assistant Public Advocate 

Capital Post Conviction Unit 

100 Fair Oaks Lane, Suite 301 

Frankfort, Kentucky 40601 

COUNSEL FOR APPELLEE/CROSS-APPELLANT: 

Jack Conway 

Attorney General 

David Wayne Barr 

Assistant Attorney General 

Office of Attorney General 

Office of Criminal Appeals 

1024 Capital Center Drive 

Frankfort, Kentucky 40601-8204 

58 
,Suprrntr (Court of 1,fittifttritv 

2008-SC-000860-MR 

2008-SC-000925-MR 

2008-SC-000957-MR 

BRIAN KEITH MOORE APPELLANT/CROSS -APPELLEE 

ON APPEAL FROM JEFFERSON CIRCUIT COURT 

V. HONORABLE JAMES M. SHAKE, JUDGE 

NO. 79-CR-000976 

COMMONWEALTH. OF KENTUCKY APPELLEE / CROSS-APPELLANT 

ORDER DENYING PETITION FOR REHEARING 

BUT MODIFYING OPINION 

The Petition for Rehearing, filed by the Commonwealth of Kentucky, of 

the Opinion of the Court, rendered June 16, 2011, is DENIED, 

The Opinion of the Court rendered on June 16, 2011 is MODIFIED by 

substitution of the attached Opinion in lieu of the original Opinion. Said 

modifications do not affect the holding of the Opinion as originally rendered. 

All sitting. All concur. 

ENTERED: November 23, 2011.