RENDERED: APRIL 28, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0545-MR
MICHAEL MOORE APPELLANT
APPEAL FROM BOONE CIRCUIT COURT
v. HONORABLE RICHARD A. BRUEGGEMANN, JUDGE
ACTION NO. 09-CR-00641
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; KAREM AND MCNEILL, JUDGES.
THOMPSON, CHIEF JUDGE: Michael Moore (“Appellant”), pro se, appeals
from an order of the Boone Circuit Court denying his Kentucky Rules of Criminal
Procedure (“RCr”) 11.42 motion to vacate, set aside, or correct his sentence.
Appellant argues that his trial counsel was ineffective in failing to move to
suppress certain testimony, and to call an expert witness to testify about the effects
that long-term drug use had on Appellant. He also argues that his appellate
counsel was ineffective in failing to raise meritorious issues on direct appeal, and
that we should find cumulative error sufficient to vacate his conviction and
sentence. After careful review, we find no error and affirm the order on appeal.
FACTS AND PROCEDURAL HISTORY
The underlying criminal appeal was adjudicated in Moore v.
Commonwealth, No. 2014-SC-000023-MR, 2015 WL 4972249 (Ky. Aug. 20,
2015). In the interest of judicial economy, we adopt the Kentucky Supreme
Court’s recitation of facts in that proceeding. The Court stated:
In 2009, Appellant, Michael Moore, was living
with his parents at their home in Union, Kentucky.
Appellant had been prescribed pain medication for years
as a result of an employment related back injury.
However, Appellant had abused his medication and
admitted to being a drug addict. His addiction caused
great friction between him and his parents.
Appellant’s mother, Madge Moore, suffered from
multiple sclerosis. Her illness required her to consume
prescribed medication on a daily basis. Ms. Moore
would often share some of her pain medication with
Appellant. Appellant also stole her medication as well.
This angered Appellant’s father, Warren Moore, who
began keeping some of the medication in a safe located
in their home. Warren also stored his wife’s pills at his
place of employment and on his person. This angered his
wife, who believed that she should have total control
over her medication.
On the evening of June 12, 2009, Appellant and
his parents were arguing over Appellant’s continued use
of his mother’s pills. His parents were also upset with
Appellant because he had failed to attend mediation in
Georgia concerning his pending divorce. Instead of
going to Georgia, Appellant stayed at a Super 8 motel in
-2-
Florence and got high. The argument on the 12th of June
led to a physical altercation between Appellant and his
father. Appellant shot his mother and father in the head
with his father’s pistol. Appellant was also shot in his
thigh.
Soon thereafter, Appellant walked outside and into
the backyard, and threw the murder weapon onto the
roof. Appellant then walked back inside the house and
eventually called the police approximately 30-45 minutes
after the shooting. Appellant informed the 911 operator
that a masked intruder entered the Moore residence, shot
him, shot his parents, and then left. Appellant continued
to tell this narrative to the police as well as friends and
family in the years leading up to trial.
However, Appellant changed his trial theory to
self-defense. Appellant testified that his father shot and
killed his mother and then shot him in the leg and groin.
Appellant stated that he shot his father twice in the head
in an attempt to save his own life.
A Boone Circuit Court jury convicted Appellant of
two counts of murder, one count of tampering with
physical evidence, and one count of falsely reporting an
incident. Presented with the option of imposing the death
penalty, the jury recommended a sentence of life without
the possibility of parole on each murder conviction, five
years’ imprisonment for the tampering conviction, and
twelve months for the false reporting conviction. The
trial court sentenced Appellant in accord with the jury’s
recommendation.
Id. at *1.
Appellant raised six issues on appeal to the Kentucky Supreme Court:
erroneous admission of improper evidence; the denial of his motion to suppress his
statements; discovery violation; failure to excuse certain jurors; improper cross-
-3-
examination; and, failure to give a missing evidence instruction. The Court
affirmed Appellant’s conviction, judgment, and sentence.
On August 23, 2016, Appellant, pro se, filed an RCr 11.42 motion to
vacate his conviction based on his claim of ineffective assistance of counsel. On
December 3, 2021, the Boone Circuit Court denied Appellant’s motion for relief
without a hearing.1 This appeal followed.
STANDARD OF REVIEW
To prevail on a claim of ineffective assistance of counsel, Appellant
must show two things:
First, the defendant must show that counsel’s
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense.
This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d
674 (1984). “[T]he proper standard for attorney performance is that of reasonably
effective assistance.” Id.
An error by counsel, even if professionally unreasonable,
does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment.
1
The ruling on the motion was delayed for a number of years while Appellant filed various other
motions and prosecuted an appeal from the denial of a motion for DNA testing.
-4-
The purpose of the Sixth Amendment guarantee of
counsel is to ensure that a defendant has the assistance
necessary to justify reliance on the outcome of the
proceeding. Accordingly, any deficiencies in counsel’s
performance must be prejudicial to the defense in order
to constitute ineffective assistance under the Constitution.
Id. at 691-92, 104 S. Ct. at 2066-67. “It is not enough for the defendant to show
that the errors had some conceivable effect on the outcome of the proceeding.” Id.
at 693, 104 S. Ct. at 2067. “The defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694, 104 S. Ct. at 2068.
Additionally, “a hearing is required only if there is an issue of fact which cannot be
determined on the face of the record.” Stanford v. Commonwealth, 854 S.W.2d
742, 743-44 (Ky. 1993).
ARGUMENTS AND ANALYSIS
Appellant, pro se, raises four argument on appeal: 1) that trial counsel
was ineffective in failing to seek the suppression of witness testimony; 2) that trial
counsel was ineffective in failing to call an expert witness; 3) that appellate
counsel was ineffective in failing to raise on appeal the circuit court’s denial of a
continuance; and, 4) that cumulative errors are sufficient to vacate his conviction
and sentence. We will consider each argument in the order it was raised by
Appellant.
-5-
1. Suppression of Witness Testimony
Appellant argues that his trial counsel was ineffective in failing to
seek the suppression of two witnesses’ testimony at trial. He first maintains that
the testimony of his former girlfriend, Sheri Kenneda, should have been
suppressed. Appellant asserts that Kenneda’s testimony regarding email
conversations she had with Appellant’s father about Appellant’s drug use was
improper and that Appellant’s counsel was ineffective in failing to seek the
suppression of this testimony. Appellant hypothesizes that the police threatened
Kenneda in order to obtain favorable testimony, and that secret recordings made by
Kenneda while Appellant was in the hospital would have favored Appellant had
the tape recorder not stopped recording. Appellant also argues that his counsel
should have sought the suppression of witness Debbie Moore’s testimony. Debbie
Moore is Appellant’s sister-in-law. He maintains that Moore was improperly
monitoring the testimony of other witnesses at trial, and that she and her husband
were involved in wagering as to whether Appellant would testify at trial.
Appellant argues that because Moore was monitoring the trial on social media, her
testimony was improperly influenced and should not have been admitted.
Appellant does not reveal specifically which testimony of Kenneda or
Moore he found objectionable. Instead, he argues in general terms that the
-6-
testimony was improper and that his counsel was ineffective in failing to seek its
exclusion. The record demonstrates, however, that Appellant’s counsel objected
multiple times to the introduction of testimony from both Kenneda and Moore.
Further, on direct appeal, the Kentucky Supreme Court determined that Appellant
admitted evidence of the type to which he now objects. The Court stated that
[t]he Commonwealth’s theory of the case was that
Appellant killed his parents as the culmination of
growing animosity between Appellant and his parents
concerning his sharing and theft of his mother’s
prescribed pain medication. In support, the
Commonwealth presented evidence that Appellant stole
money from his parents and others through several
instances of check forgery and credit card fraud.
Appellant himself provided extensive testimony that
confirmed his addiction, multiple instances of check
forgery, and the continuing friction between him and his
parents. Yet, Appellant claims that it was error to admit
evidence conveying sentiments that were similar or
identical to those introduced by Appellant himself in
support of his own defense.
Moore, 2015 WL 4972249, at *2.
Since Appellant’s counsel repeatedly objected to the testimony of
Kenneda and Moore, and as Appellant does not now reveal specifically which
testimony he finds objectionable nor how the outcome of the proceeding would
have been different but for the testimony, Strickland, supra, we find no error on
this issue.
-7-
2. Failure to Call an Expert Witness
Appellant next argues that his counsel was ineffective in failing to call
an expert witness who could testify regarding how long-term drug use affected
Appellant, and the mitigating effects of such drug use. He asserts that an expert
was available to be brought in from Duke University for trial and was prepared to
testify as to how Appellant’s drug use affected his behavior. According to
Appellant, his trial counsel made the decision not to call the expert witness.
Appellant argues that the testimony of this expert was vital to rebut the
Commonwealth’s only theory of the case, i.e., that Appellant’s drug use, in concert
with growing animosity between Appellant and his parents, led to the shootings.
Appellant does not demonstrate how expert witness testimony on the
issue of Appellant’s drug use would have had a mitigating effect as to the
Commonwealth’s case in chief, i.e., the Commonwealth’s theory that Appellant
killed his parents as the culmination of growing animosity over Appellant’s theft
and drug use. In addition, though Appellant asserted before trial that a masked
intruder killed his parents, he changed his theory at trial to self-defense and argued
that his father killed his mother and then attempted to kill Appellant. Appellant
does not reveal how expert testimony regarding Appellant’s drug use would have
bolstered a claim of self-defense. Further, “a trial counsel’s choice of whether to
call witnesses is generally accorded a presumption of deliberate trial strategy and
-8-
cannot be subject to second-guessing in a claim of ineffective assistance of
counsel.” Saylor v. Commonwealth, 357 S.W.3d 567, 571 (Ky. App. 2012)
(citation omitted). Again, Appellant has not demonstrated that there is a
reasonable probability that but for counsel’s alleged ineffective assistance on this
issue, the outcome of the proceeding would have been different. Strickland, supra.
We find no error.
3. Failure to Raise an Issue on Appeal
Appellant’s third argument is that his appellate counsel was
ineffective in failing to raise on appeal the trial court’s denial of trial counsel’s
motion for a continuance. At trial, counsel made a request for a continuation to
obtain a mitigation specialist and to perform DNA testing on the clothing of
Appellant’s father. The request was denied and Appellant asserts that appellate
counsel was ineffective in failing to raise as error the denial of the continuance.
There is “a strong presumption that appellate counsel’s choice of
issues to present to the appellate court was a reasonable exercise of appellate
strategy.” Hollon v. Commonwealth, 334 S.W.3d 431, 436 (Ky. 2010).
The circuit court denied Appellant’s motion for a continuance largely because
Appellant had four years leading up to trial during which he could have developed
a defense theory, engaged expert witnesses, and conducted DNA testing.
-9-
Further, even if the DNA of Appellant’s mother were found on his father’s
clothing, it is difficult to see how this would affect the outcome of the proceeding
since Appellant argued at trial that his father shot his mother. Under Appellant’s
theory of the case, it would be plausible if not likely that his mother’s DNA would
be found on his father’s clothing.2 Ultimately, the burden rests with Appellant to
overcome the strong presumption that counsel prosecuted reasonable appellate
strategy on appeal. Id. Appellant has not overcome this presumption and we find
no error.3
4. Cumulative Error
Lastly, Appellant argues that he is entitled to have his conviction and
sentence vacated based on cumulative error. Citing Walker v Engle, 703 F.2d 959,
963 (6th Cir. 1983), Appellant asserts that errors which might not be so prejudicial
as to amount to a deprivation of due process when considered alone may produce
an overall fundamentally unfair trial setting.
Cumulative error is a doctrine “under which multiple errors, although
harmless individually, may be deemed reversible if their cumulative effect is to
2
At trial, Appellant’s counsel moved for DNA testing to determine if his mother’s blood was
found on his father’s shirt. He now argues that DNA testing was required to demonstrate that
none of his blood was found on the back of his father’s shirt.
3
Woven into this argument is Appellant’s claim that he did not receive an impartial jury because
his brother was allegedly observed speaking with a member of the jury pool. This argument
should have been raised, if at all, on direct appeal to the Kentucky Supreme Court.
-10-
render the trial fundamentally unfair. We have found cumulative error only where
the individual errors were themselves substantial, bordering, at least, on the
prejudicial.” Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010) (citation
omitted). We have found no substantial individual errors, and thus no cumulative
error.
CONCLUSION
For the foregoing reasons, we affirm the order of the Boone Circuit
Court denying Appellant’s RCr 11.42 motion to vacate, set aside, or correct his
sentence.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Michael Moore, pro se Daniel J. Cameron
Wheelwright, Kentucky Attorney General of Kentucky
Joseph A. Beckett
Assistant Attorney General
Frankfort, Kentucky
-11-