RENDERED: APRIL 28, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0545-MR

MICHAEL MOORE APPELLANT 

v. 

APPEAL FROM BOONE CIRCUIT COURT

HONORABLE RICHARD A. BRUEGGEMANN, JUDGE

ACTION NO. 09-CR-00641

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: THOMPSON, CHIEF JUDGE; KAREM AND MCNEILL, JUDGES.

THOMPSON, CHIEF JUDGE: Michael Moore (“Appellant”), pro se, appeals 

from an order of the Boone Circuit Court denying his Kentucky Rules of Criminal 

Procedure (“RCr”) 11.42 motion to vacate, set aside, or correct his sentence. 

Appellant argues that his trial counsel was ineffective in failing to move to 

suppress certain testimony, and to call an expert witness to testify about the effects 

that long-term drug use had on Appellant. He also argues that his appellate 

counsel was ineffective in failing to raise meritorious issues on direct appeal, and 
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that we should find cumulative error sufficient to vacate his conviction and 

sentence. After careful review, we find no error and affirm the order on appeal.

FACTS AND PROCEDURAL HISTORY

The underlying criminal appeal was adjudicated in Moore v. 

Commonwealth, No. 2014-SC-000023-MR, 2015 WL 4972249 (Ky. Aug. 20, 

2015). In the interest of judicial economy, we adopt the Kentucky Supreme 

Court’s recitation of facts in that proceeding. The Court stated:

 In 2009, Appellant, Michael Moore, was living 

with his parents at their home in Union, Kentucky. 

Appellant had been prescribed pain medication for years 

as a result of an employment related back injury. 

However, Appellant had abused his medication and 

admitted to being a drug addict. His addiction caused 

great friction between him and his parents.

 Appellant’s mother, Madge Moore, suffered from 

multiple sclerosis. Her illness required her to consume 

prescribed medication on a daily basis. Ms. Moore 

would often share some of her pain medication with 

Appellant. Appellant also stole her medication as well.

This angered Appellant’s father, Warren Moore, who 

began keeping some of the medication in a safe located 

in their home. Warren also stored his wife’s pills at his 

place of employment and on his person. This angered his 

wife, who believed that she should have total control 

over her medication.

 On the evening of June 12, 2009, Appellant and 

his parents were arguing over Appellant’s continued use 

of his mother’s pills. His parents were also upset with 

Appellant because he had failed to attend mediation in 

Georgia concerning his pending divorce. Instead of 

going to Georgia, Appellant stayed at a Super 8 motel in 
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Florence and got high. The argument on the 12th of June 

led to a physical altercation between Appellant and his 

father. Appellant shot his mother and father in the head 

with his father’s pistol. Appellant was also shot in his 

thigh.

 Soon thereafter, Appellant walked outside and into 

the backyard, and threw the murder weapon onto the 

roof. Appellant then walked back inside the house and 

eventually called the police approximately 30-45 minutes 

after the shooting. Appellant informed the 911 operator 

that a masked intruder entered the Moore residence, shot 

him, shot his parents, and then left. Appellant continued 

to tell this narrative to the police as well as friends and 

family in the years leading up to trial.

 However, Appellant changed his trial theory to 

self-defense. Appellant testified that his father shot and 

killed his mother and then shot him in the leg and groin. 

Appellant stated that he shot his father twice in the head 

in an attempt to save his own life.

 A Boone Circuit Court jury convicted Appellant of 

two counts of murder, one count of tampering with 

physical evidence, and one count of falsely reporting an 

incident. Presented with the option of imposing the death 

penalty, the jury recommended a sentence of life without 

the possibility of parole on each murder conviction, five 

years’ imprisonment for the tampering conviction, and 

twelve months for the false reporting conviction. The 

trial court sentenced Appellant in accord with the jury’s 

recommendation.

Id. at *1.

Appellant raised six issues on appeal to the Kentucky Supreme Court: 

erroneous admission of improper evidence; the denial of his motion to suppress his 

statements; discovery violation; failure to excuse certain jurors; improper cross-
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examination; and, failure to give a missing evidence instruction. The Court 

affirmed Appellant’s conviction, judgment, and sentence.

On August 23, 2016, Appellant, pro se, filed an RCr 11.42 motion to 

vacate his conviction based on his claim of ineffective assistance of counsel. On 

December 3, 2021, the Boone Circuit Court denied Appellant’s motion for relief

without a hearing.

1

 This appeal followed. 

STANDARD OF REVIEW

To prevail on a claim of ineffective assistance of counsel, Appellant 

must show two things:

First, the defendant must show that counsel’s 

performance was deficient. This requires showing that 

counsel made errors so serious that counsel was not 

functioning as the “counsel” guaranteed the defendant by 

the Sixth Amendment. Second, the defendant must show 

that the deficient performance prejudiced the defense. 

This requires showing that counsel’s errors were so 

serious as to deprive the defendant of a fair trial, a trial 

whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 

674 (1984). “[T]he proper standard for attorney performance is that of reasonably 

effective assistance.” Id. 

An error by counsel, even if professionally unreasonable, 

does not warrant setting aside the judgment of a criminal 

proceeding if the error had no effect on the judgment. 

1 The ruling on the motion was delayed for a number of years while Appellant filed various other 

motions and prosecuted an appeal from the denial of a motion for DNA testing. 
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The purpose of the Sixth Amendment guarantee of 

counsel is to ensure that a defendant has the assistance 

necessary to justify reliance on the outcome of the 

proceeding. Accordingly, any deficiencies in counsel’s 

performance must be prejudicial to the defense in order 

to constitute ineffective assistance under the Constitution. 

Id. at 691-92, 104 S. Ct. at 2066-67. “It is not enough for the defendant to show 

that the errors had some conceivable effect on the outcome of the proceeding.” Id.

at 693, 104 S. Ct. at 2067. “The defendant must show that there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” Id. at 694, 104 S. Ct. at 2068. 

Additionally, “a hearing is required only if there is an issue of fact which cannot be 

determined on the face of the record.” Stanford v. Commonwealth, 854 S.W.2d 

742, 743-44 (Ky. 1993).

ARGUMENTS AND ANALYSIS

Appellant, pro se, raises four argument on appeal: 1) that trial counsel 

was ineffective in failing to seek the suppression of witness testimony; 2) that trial 

counsel was ineffective in failing to call an expert witness; 3) that appellate 

counsel was ineffective in failing to raise on appeal the circuit court’s denial of a 

continuance; and, 4) that cumulative errors are sufficient to vacate his conviction 

and sentence. We will consider each argument in the order it was raised by 

Appellant.
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1. Suppression of Witness Testimony

Appellant argues that his trial counsel was ineffective in failing to 

seek the suppression of two witnesses’ testimony at trial. He first maintains that 

the testimony of his former girlfriend, Sheri Kenneda, should have been 

suppressed. Appellant asserts that Kenneda’s testimony regarding email 

conversations she had with Appellant’s father about Appellant’s drug use was

improper and that Appellant’s counsel was ineffective in failing to seek the 

suppression of this testimony. Appellant hypothesizes that the police threatened 

Kenneda in order to obtain favorable testimony, and that secret recordings made by 

Kenneda while Appellant was in the hospital would have favored Appellant had 

the tape recorder not stopped recording. Appellant also argues that his counsel 

should have sought the suppression of witness Debbie Moore’s testimony. Debbie 

Moore is Appellant’s sister-in-law. He maintains that Moore was improperly 

monitoring the testimony of other witnesses at trial, and that she and her husband 

were involved in wagering as to whether Appellant would testify at trial. 

Appellant argues that because Moore was monitoring the trial on social media, her 

testimony was improperly influenced and should not have been admitted.

Appellant does not reveal specifically which testimony of Kenneda or 

Moore he found objectionable. Instead, he argues in general terms that the 
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testimony was improper and that his counsel was ineffective in failing to seek its 

exclusion. The record demonstrates, however, that Appellant’s counsel objected

multiple times to the introduction of testimony from both Kenneda and Moore. 

Further, on direct appeal, the Kentucky Supreme Court determined that Appellant 

admitted evidence of the type to which he now objects. The Court stated that

[t]he Commonwealth’s theory of the case was that 

Appellant killed his parents as the culmination of 

growing animosity between Appellant and his parents 

concerning his sharing and theft of his mother’s 

prescribed pain medication. In support, the 

Commonwealth presented evidence that Appellant stole 

money from his parents and others through several 

instances of check forgery and credit card fraud. 

Appellant himself provided extensive testimony that 

confirmed his addiction, multiple instances of check 

forgery, and the continuing friction between him and his 

parents. Yet, Appellant claims that it was error to admit 

evidence conveying sentiments that were similar or 

identical to those introduced by Appellant himself in 

support of his own defense.

Moore, 2015 WL 4972249, at *2. 

Since Appellant’s counsel repeatedly objected to the testimony of 

Kenneda and Moore, and as Appellant does not now reveal specifically which 

testimony he finds objectionable nor how the outcome of the proceeding would 

have been different but for the testimony, Strickland, supra, we find no error on 

this issue.
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2. Failure to Call an Expert Witness

Appellant next argues that his counsel was ineffective in failing to call 

an expert witness who could testify regarding how long-term drug use affected 

Appellant, and the mitigating effects of such drug use. He asserts that an expert

was available to be brought in from Duke University for trial and was prepared to 

testify as to how Appellant’s drug use affected his behavior. According to 

Appellant, his trial counsel made the decision not to call the expert witness. 

Appellant argues that the testimony of this expert was vital to rebut the 

Commonwealth’s only theory of the case, i.e., that Appellant’s drug use, in concert 

with growing animosity between Appellant and his parents, led to the shootings.

Appellant does not demonstrate how expert witness testimony on the 

issue of Appellant’s drug use would have had a mitigating effect as to the 

Commonwealth’s case in chief, i.e., the Commonwealth’s theory that Appellant 

killed his parents as the culmination of growing animosity over Appellant’s theft 

and drug use. In addition, though Appellant asserted before trial that a masked 

intruder killed his parents, he changed his theory at trial to self-defense and argued 

that his father killed his mother and then attempted to kill Appellant. Appellant 

does not reveal how expert testimony regarding Appellant’s drug use would have 

bolstered a claim of self-defense. Further, “a trial counsel’s choice of whether to 

call witnesses is generally accorded a presumption of deliberate trial strategy and 
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cannot be subject to second-guessing in a claim of ineffective assistance of 

counsel.” Saylor v. Commonwealth, 357 S.W.3d 567, 571 (Ky. App. 2012)

(citation omitted). Again, Appellant has not demonstrated that there is a 

reasonable probability that but for counsel’s alleged ineffective assistance on this 

issue, the outcome of the proceeding would have been different. Strickland, supra. 

We find no error.

3. Failure to Raise an Issue on Appeal

Appellant’s third argument is that his appellate counsel was 

ineffective in failing to raise on appeal the trial court’s denial of trial counsel’s 

motion for a continuance. At trial, counsel made a request for a continuation to 

obtain a mitigation specialist and to perform DNA testing on the clothing of 

Appellant’s father. The request was denied and Appellant asserts that appellate 

counsel was ineffective in failing to raise as error the denial of the continuance.

There is “a strong presumption that appellate counsel’s choice of 

issues to present to the appellate court was a reasonable exercise of appellate 

strategy.” Hollon v. Commonwealth, 334 S.W.3d 431, 436 (Ky. 2010). 

The circuit court denied Appellant’s motion for a continuance largely because 

Appellant had four years leading up to trial during which he could have developed

a defense theory, engaged expert witnesses, and conducted DNA testing.
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Further, even if the DNA of Appellant’s mother were found on his father’s 

clothing, it is difficult to see how this would affect the outcome of the proceeding 

since Appellant argued at trial that his father shot his mother. Under Appellant’s 

theory of the case, it would be plausible if not likely that his mother’s DNA would 

be found on his father’s clothing.2 Ultimately, the burden rests with Appellant to 

overcome the strong presumption that counsel prosecuted reasonable appellate 

strategy on appeal. Id. Appellant has not overcome this presumption and we find 

no error.3

4. Cumulative Error

Lastly, Appellant argues that he is entitled to have his conviction and 

sentence vacated based on cumulative error. Citing Walker v Engle, 703 F.2d 959, 

963 (6th Cir. 1983), Appellant asserts that errors which might not be so prejudicial 

as to amount to a deprivation of due process when considered alone may produce 

an overall fundamentally unfair trial setting. 

Cumulative error is a doctrine “under which multiple errors, although 

harmless individually, may be deemed reversible if their cumulative effect is to 

2 At trial, Appellant’s counsel moved for DNA testing to determine if his mother’s blood was 

found on his father’s shirt. He now argues that DNA testing was required to demonstrate that 

none of his blood was found on the back of his father’s shirt.

3 Woven into this argument is Appellant’s claim that he did not receive an impartial jury because 

his brother was allegedly observed speaking with a member of the jury pool. This argument 

should have been raised, if at all, on direct appeal to the Kentucky Supreme Court.
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render the trial fundamentally unfair. We have found cumulative error only where 

the individual errors were themselves substantial, bordering, at least, on the 

prejudicial.” Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010) (citation 

omitted). We have found no substantial individual errors, and thus no cumulative 

error.

CONCLUSION

For the foregoing reasons, we affirm the order of the Boone Circuit 

Court denying Appellant’s RCr 11.42 motion to vacate, set aside, or correct his 

sentence. 

ALL CONCUR.

BRIEFS FOR APPELLANT:

Michael Moore, pro se

Wheelwright, Kentucky

BRIEF FOR APPELLEE:

Daniel J. Cameron

Attorney General of Kentucky

Joseph A. Beckett

Assistant Attorney General

Frankfort, Kentucky