Moore v. Commonwealth

• Decision Date: 16 June 2011
• Docket Number: 2008–SC–000925–MR,2008–SC–000957–MR.,Nos. 2008–SC–000860–MR,s. 2008–SC–000860–MR
• Citation: 357 S.W.3d 470
• Parties: Brian Keith MOORE, Appellant/Cross–Appellee, v. COMMONWEALTH of Kentucky, Appellee/Cross–Appellant.
• Court: United States State Supreme Court — District of Kentucky

357 S.W.3d 470

Brian Keith MOORE, Appellant/Cross–Appellee,

v.COMMONWEALTH of Kentucky, Appellee/Cross–Appellant.

Nos. 2008–SC–000860–MR

2008–SC–000925–MR

2008–SC–000957–MR.

Supreme Court of Kentucky.

June 16, 2011.

Nov. 23, 2011.

As Modified on Denial of Rehearing

David Hare Harshaw, III, Assistant Public Advocate, Department of Public Advocacy, LaGrange, KY, David Michael Barron, Department of Public Advocacy, Assistant Public Advocate, Frankfort, KY, Counsel for Appellant/Cross–Appellee.

Jack Conway, Attorney General, David Wayne Barr, Assistant Attorney General, Office of Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee/Cross–Appellant.

Opinion of the Court by Justice NOBLE.

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.

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 corrections officer.¹ 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 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 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.

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 stat...