Brian Keith Moore v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: June 15, 2011
• Docket: 2008 SC 000860
• Status: Unknown

Opinion

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* r tvar4+P-c--

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. 2 He 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

2 At 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. 3 Appellant 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. 5 The 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. 6 The 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 self-

collected 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

7 Though 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 cross-

appeals 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-SC-

000901-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. 8 But the trial court's finding in this regard was simply part of its

8 He 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. 9 Much 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. 10 This 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 Y-

STR 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 post-

conviction 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). 12 The 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. 14 The 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. 14 Of 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 non- capital 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. 15 To 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). 16 Appellant, 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 post-

conviction 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. 17 In 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

17Indeed, 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 self-

collection 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, second-

degree 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 Y-

STR 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.