RENDERED: DECEMBER 18, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-0281-MR

CLETUS ROBBINS, JR. APPELLANT

APPEAL FROM HARLAN CIRCUIT COURT

v. HONORABLE KENT HENDRICKSON, JUDGE

ACTION NO. 14-CR-00083

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES.

MAZE, JUDGE: Cletus Robbins, Jr. appeals from a judgment of the Harlan 

Circuit Court denying his request, pursuant to Kentucky Rules of Criminal 

Procedure (RCr) 11.42, for post-conviction relief. For the following reasons, we

affirm.
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Following a jury trial, Robbins was convicted of first-degree 

kidnapping with serious physical injury; first-degree robbery; two counts of 

second-degree assault (against victim Benji Stout); first-degree unlawful 

imprisonment (of victim Gabrielle Cochran); two counts of wanton endangerment 

(of Stout and Cochran); two counts of intimidating a participant in the legal 

process (of Stout and Cochran); and being a persistent first-degree felony offender. 

The jury recommended a total sentence of twenty-five years in prison and the trial 

court imposed that sentence. 

On direct appeal, the Kentucky Supreme Court affirmed Robbins’ 

convictions. Robbins v. Commonwealth, No. 2015-SC-000478-MR, 2017 WL 

5494103 (Ky. Mar. 23, 2017). We adopt the facts set forth in that Opinion here:

During the evening of May 2, 2014, Cletus

Robbins Jr. and Erica Bryant visited the home of Arbin 

Shepherd. Later that evening, Benji Stout and Gabrielle 

Wright Cochran arrived at the residence. Subsequently,

Robbins and Stout began to argue and the argument 

became physical, resulting in Stout being badly beaten 

and shot with a handgun. Beyond these facts, witness 

testimony differed as to what transpired that evening and 

what triggered the dispute and assault.

The Commonwealth’s first witness was Bryant, 

who was dating Robbins’s step-son at the time of this 

incident. Bryant was with Robbins when he received a 

phone call about visiting Shepherd’s house that evening. 

In her interview with the police, Bryant explained that 

Shepherd called Robbins to inform him that he had “got 

the lady,” who had sold them counterfeit Xanax pills and 

that she would be at his house that evening. As a 
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consequence of this call, Bryant and Robbins went to 

Shepherd’s home.

According to Bryant the mood in the house was 

tense. Asked specifically about Robbins’s mood, Bryant 

recalled that he was angry. Once Stout and Cochran 

arrived at the residence, Stout was summoned by 

Robbins to come to the kitchen. Due to her vantage point 

in the living room, which was immediately next to the 

kitchen, Bryant was able to observe how the conflict 

began. Initially, Bryant heard Robbins shout at Stout that 

he “had got him for $600 the day before.” Robbins then 

began to beat Stout and as the beating continued Stout 

fell to the ground, with Robbins kicking him in the head. 

The beating continued despite Stout’s pleas for Robbins 

to stop.

Afterwards, Robbins and Carl Edward Collins, tied 

Stout up with a nylon rope. Robbins then placed a gun to 

Stout’s head, stating he was going to get his $600 back 

from Stout. While Stout was tied up, Collins took money 

and illicit narcotics from his person. That money was 

subsequently divided among Robbins, Collins, and 

Shepherd.

During this period, Bryant approached Robbins

asking him to calm down. In response, Robbins pointed 

his gun in her face and informed her that he intended to 

shoot Stout. Bryant put her hands up and retreated to 

defuse the situation. Afterwards, Robbins returned his 

focus to Stout, untying his restraints. However, Robbins

continued to yell at Stout about the money. During this 

exchange Bryant heard a gunshot and realized that Stout 

had been shot in the chest. 

Bryant was ordered by Collins to clean up Stout’s 

blood in the kitchen. While Bryant did so, she overheard

Robbins boasting that he had “got [Stout]”. Later, 

Cochran, Stout’s companion, entered the kitchen and

Robbins struck her in the face. After a short 
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discussion, Robbins and Collins gave Stout some of his 

money back so he could pay for gas to return to 

Lexington. Prior to letting Stout and Cochran leave, 

Robbins told the pair not to stop on the way to Lexington 

or inform anyone about what had happened or he would 

kill Cochran’s family.

The Commonwealth’s second witness was 

Shepherd, the homeowner. Shepherd admitted to having 

taken Xanax the day of the assault and that as a result he 

was in and out of consciousness throughout the evening.

Shepherd testified that Robbins had come to his house to 

rendezvous with Stout and Cochran. Prior to the start of 

the altercation in the kitchen, Shepherd overhead Stout 

and Robbins discussing a prior drug deal for Xanax. 

While in and out of consciousness, Shepherd heard 

“scuffling” in the kitchen. The sound of the gunshot in 

the kitchen, lifted Shepherd from his stupor, and he went 

to his room to get his gun.

Shepherd went on to explain that his concern was 

to calm down Robbins and get everyone out of his home.

In a tense moment, Robbins and Shepherd pointed their 

weapons at each other, but the moment passed without 

violence. Later, Shepherd watched Stout leave his 

residence, while Bryant worked to clean up his blood. 

During cross-examination, Shepherd claimed to not 

understand the reason for the dispute between Robbins 

and Stout, explaining that he had purchased genuine 

Xanax which he used that evening. Shepherd explained 

that this was the second occasion in which Stout and 

Cochran came to his house to sell Xanax. Also, 

Shepherd denied that anyone had been tied up.

The Commonwealth’s third witness was Collins.

Collins, a convicted felon, testified that he was home in 

bed when he received a call from Shepherd’s landline 

telephone, requesting that he come to the house. When 

Collins arrived at the residence, he discovered that 

Shepherd was unconscious and that Robbins had called 
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him from Shepherd’s phone. Collins explained that had 

he known that it was Robbins who had called him that he 

would not have gone to the house, as the two men did not 

get along.

Robbins told Collins that the drugs that he had 

previously purchased from Stout were counterfeit.

Further, he told Collins that Stout and Cochran were on 

the way to the house to sell narcotics, as they had 

previously done once before. Collins observed that

Robbins was angry and intended to harm Stout. To avoid 

a fight and a possible disruption in Stout and Cochran 

bringing drugs from Lexington, Collins offered to buy 

the counterfeit drugs from Robbins. While Robbins

accepted Collins’s money, he remained at Shepherd’s 

house waiting for Stout and Cochran to arrive. When 

Stout and Cochran failed to arrive on time, Robbins used 

Shepherd’s home phone and his cell phone to call and 

threaten Cochran’s family. 

A short while later, Cochran arrived at Shepherd’s 

home and questioned Robbins about why he contacted 

her family, as they did not know that she and Stout sold 

narcotics. Robbins told her that everything was fine and 

questioned her about Stout’s whereabouts, who was still 

in the car. Collins testified that when Stout entered the 

living room, Robbins immediately got up, put his arm 

around Stout, and shot him in the chest. Robbins then 

began to beat Stout in the kitchen. During the beating, 

Stout screamed Collins’s name in a desperate plea for 

help. After beating Stout for approximately ten minutes,

Robbins took a taser from Stout’s pocket and shocked 

him with it. Collins also testified about Robbins’s crazed 

state, which was demonstrated by his subsequent use of

the taser on himself.

Afterwards, Robbins pointed his gun at Shepherd, 

which led to Collins retrieving a gun that was located on 

top of the refrigerator. Collins explained that he obtained 

the weapon, so that if Robbins shot Shepherd, he would 
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be able to retaliate against Robbins. Subsequently, 

Collins took Cochran into the living room, away from 

Robbins who continued to repeat that he was going to kill 

and bury them. Collins testified that he was concerned 

that Robbins intended to kill Stout and Cochran. In an 

attempt to calm Cochran down, he slapped her in the face 

and urged her to listen to him so they could get out of the 

situation.

Later, Collins observed Robbins standing in front 

of Cochran with her shirt half buttoned; he surmised that 

it was due to Robbins searching her person for narcotics. 

After deciding to not further harm Stout and Cochran, 

Robbins informed the pair that if they were to contact the 

police that he would respond by killing Cochran’s whole 

family. Prior to Stout and Cochran’s departure, Collins 

helped clean up Stout and gave him advice on how to 

breathe in case his lung had been struck in the shooting. 

During his testimony, Collins denied that Stout had been 

tied up during his ordeal.

The Commonwealth’s fourth witness was 

Kentucky State Police Detective Craig Miller. Detective 

Miller became involved in the case after receiving a 

report that Stout had visited Good Samaritan Hospital in 

Lexington claiming to be the victim of a gunshot wound. 

Subsequently, Detective Miller took witness statements 

from Stout and Cochran, created photo pack lineups, and 

obtained a search warrant for Shepherd’s residence. The 

resulting search of Shepherd’s residence led to the 

discovery of a green nylon rope, a .38 caliber handgun, 

and a .22 caliber rifle. Also, Stout had told the police 

that his beaded necklace was broken during the beating; 

police recovered beads in multiple locations in 

Shepherd’s kitchen. Subsequently, Detective Miller 

arrested Robbins and interviewed him. In his interview,

Robbins admitted to attacking Stout saying, “I beat the 

shit outta him; I beat his motherfucking brains out. . . .” 

Later, Robbins’s wife provided to police the pills 
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that Robbins had allegedly obtained from Stout and 

Stout’s taser.

The Commonwealth’s final two witnesses were 

Stout and Cochran. Stout, a convicted felon, explained 

that he and Cochran were traveling to Harlan County to 

see their children who were staying with their maternal 

grandparents, Cochran’s parents. In route to the house, 

Cochran received a phone call from her mother, 

informing her that someone had called her house. In 

response, Cochran informed Stout that they needed to 

make a stop at Shepherd’s home.

After arriving at Shepherd’s residence, Stout noted 

that there was a crowd of happy people who warmly 

welcomed them into the home. Subsequently, Robbins 

took Stout into the kitchen and began beating him with a 

gun. As part of this assault, Robbins struck Stout in the 

back of the head with the gun causing him to fall to the 

floor. Once on the ground, Robbins began to kick Stout, 

which included kicking him in the face. As Stout began 

to crawl towards the back door of the house, Robbins, 

using a racial epithet, told Stout he was going to kill him.

Robbins then shot Stout in the chest.

Stout testified that he was forced into a chair and 

someone tried to remove his shirt. Then, Robbins 

observed that Stout had a taser, took it from him, and 

used it against him. Stout testified that throughout the 

beating, he was held at gunpoint. He also recounted 

being tied up by Bryant and Collins. Eventually, Stout 

was permitted to leave the residence. Prior to leaving, 

Stout was warned against going to the authorities, 

with Robbins threatening to kill Cochran’s parents if he 

did so. Stout testified that he delayed going to the 

hospital in Lexington for three days due to his fear 

of Robbins’s retaliation. During cross-examination, 

Stout denied possessing any illegal narcotics the night of 

the incident. He claimed to have $2,400 in cash stolen 
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from him that night, cash which he received for selling a 

vehicle.

Next, Cochran testified. She recounted that while 

on the way to visit her parents in Harlan, she received a 

call (the identity of the caller is unclear) in which it was 

made clear that Robbins was upset. The caller explained 

that Robbins believed that Cochran owed him money, 

and that she needed to meet with Robbins at Shepherd’s 

residence. Additionally, Cochran’s mother called and 

told her daughter that she had received a threatening call.

After arriving at Shepherd’s house, Cochran told 

Stout to remain in the car while she went in to speak 

to Robbins. Cochran’s efforts to resolve the situation 

were unsuccessful, as Robbins and Collins held her at 

gunpoint, while Shepherd went outside to tell Stout to 

come into the house. After Stout entered the residence, 

Robbins and Collins proceeded to beat him. In 

particular, Stout testified that Robbins struck Stout in the 

head over fifty times.

Afterwards, Robbins took Stout into the kitchen, 

but just before doing so pointed a gun at Cochran’s head 

and told her to stay in the living room, and that he would 

deal with her next. In the kitchen, Robbins proceeded to 

break three chairs over Stout’s head. During this period,

Robbins repeatedly told Stout that he wanted $500. 

Subsequently, he told Bryant to get rope and she 

proceeded to tie Stout’s hands behind his back and tie his 

feet together. Once Stout was tied up, Robbins took 

money from him and then after the robbery was 

completed, Stout’s bindings were removed.

After robbing Stout, Robbins went into the living 

room and demanded money from Cochran. Cochran 

refused Robbins’s demand, telling him that she did not 

owe him anything. In response, Robbins shoved his gun 

into her eye, then put it to her temple, before finally 

striking her in the head with the gun. Robbins then 
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demanded that Cochran take off her clothes. When she 

refused, Robbins pulled her shirt open and began to 

fondle her breasts underneath her bra. After the robbery 

and this incident in the living room, Stout was shot.

Cochran testified that Robbins experienced periods 

of lucidity, before returning to crazed and violent actions. 

An example of his crazed state was Robbins’s repeated 

use of the taser on Stout while he chased him around the 

kitchen. Additionally, when Stout began to pray, 

Robbins held his hand and joined in prayer with him 

asking God for forgiveness. Yet, Robbins later 

demanded money from Stout within four days-time, and 

threatened Cochran about going to the police and that if 

she did so he would kill her family.

During cross-examination Cochran denied that she 

and Stout were involved in the sale of narcotics. When 

asked about the money that Stout had on his person at the 

time of the robbery, Cochran explained that he had 

received it as part of a social security payment. At the 

conclusion of Cochran’s testimony, the Commonwealth 

briefly recalled Detective Miller, and then rested its case.

Robbins called three witnesses. His first witness 

was Cochran’s father, Lloyd Cochran. He testified that 

while he was out of the house that there was a missed call 

and that the caller ID indicated that it was from a person 

with the last name of Shepherd. Subsequently, he called 

the number back and spoke to “a Shepherd fella.” 

Robbins’s second witness was Cochran’s mother Cathy 

Cochran. She testified about a missed call, which her 

caller ID noted as being from “Arvin Shepherd.” 

Additionally, she noted that her husband later returned 

the phone call.

Robbins then elected to testify on his own behalf. 

He explained that a couple of days before May[] 2, 2014, 

he had been informed by Shepherd that there would be 

someone at his home selling Xanax. Subsequently, 
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Robbins purchased $600 of Xanax from Stout and 

Cochran. Stout claimed that the drugs were counterfeit 

drugs that contained as little as three percent alprazolam.

Robbins told the jury that on the date in question 

he had received a call from Shepherd that Cochran and 

Stout were going to meet him at his residence and, 

consequently, Robbins would have an opportunity to get 

his money back. Afterward, Robbins went to Shepherd’s 

house to wait. After approximately twenty-five minutes, 

Stout and Cochran arrived, with Cochran entering first.

When Stout entered the house, Robbins accused 

him of selling sham Xanax. Stout told Robbins that he 

had “something else” to offer in his car, but Robbins 

informed him that he did not want anything else, but he 

did want his money back. Shortly thereafter, a brawl 

started between the two men. According to Robbins, 

when Stout attempted to take out his taser, he was 

disarmed and badly beaten by Robbins. During the 

altercation, heroin that Stout had on his person fell to the 

ground; those drugs were subsequently seized by 

Shepherd and Collins. Robbins placed the value on those 

drugs at approximately $2,400. Later Robbins gave 

Stout $30 of his own money, so that he could afford gas 

to travel back to Lexington.

Robbins denied that the event was anything more 

than a fist fight. He denied shooting Stout or even 

having a gun, insisting that only Shepherd and Collins 

were armed with guns. Further, Robbins insisted that he 

did not strike Stout with chairs or tase him. Additionally, 

Robbins denied knowledge about rope or anyone being 

tied up that evening. Robbins also denied that he had hit 

or inappropriately touched Cochran. Finally, Robbins 

denied taking any money from Stout, but did admit to 

using some of his heroin later that evening. 

According to Robbins, Stout and Cochran told 

Shepherd the following day that they would go to the 
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police, unless Robbins paid for Stout’s lost heroin.

Robbins attempted to explain away the other witnesses’

accounts of the evening, by saying that Collins and Stout 

were longtime friends. Also, Robbins alleged the 

existence of a love triangle involving Robbins, Shepherd, 

and Robbins’s wife who also happened to be Shepherd’s 

former spouse.

Id. at *1-5 (footnotes omitted).

After the Kentucky Supreme Court denied Robbins’ direct appeal, he 

filed a motion for post-conviction relief pursuant to RCr 11.42, alleging ineffective 

assistance of counsel. The trial court denied Robbins’ motion. The trial court also 

denied Robbins’ motion for an evidentiary hearing, holding that the issues of fact 

or law raised in Robbins’ motion could be resolved by examining the record.

For his appeal to this Court, Robbins argues that the trial court abused 

its discretion by denying his RCr 11.42 motion based on four1arguments: (1) his 

attorney failed and/or refused to request a lesser-included jury instruction for 

“physical injury” instead of “serious physical injury” relating to the kidnapping 

charge; (2) his attorney failed and/or refused to obtain independent testing of the 

Xanax, which may have proven he ingested something that “made him go crazy”; 

(3) his attorney failed and/or refused to request an intoxication or diminished 

capacity jury instruction; and (4) his attorney failed and/or refused to investigate 

 

1 Robbins’ RCr 11.42 motion before the trial court set forth six errors, but he is only arguing four 

of the six errors for this appeal.
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Stout’s drug trafficking. In addition, Robbins claims the trial court should have 

held an evidentiary hearing on these four alleged errors.

STANDARD OF REVIEW

The standard of review for claims of ineffective assistance of counsel 

was established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984). The defendant must establish that trial counsel made serious 

errors resulting in a performance below the objective standard of reasonableness 

and that the defective performance prejudiced the defense so seriously that there is 

a reasonable likelihood that the result of the trial would have been different absent 

the errors. Fegley v. Commonwealth, 337 S.W.3d 657, 659 (Ky. App. 2011).

A reviewing court must focus on the totality of the evidence before the judge when 

assessing the performance of trial counsel and must presume that counsel 

rendered effective assistance of counsel. Kimmelman v. Morrison, 477 U.S. 365, 

381, 106 S. Ct. 2574, 2586, 91 L. Ed. 2d 305 (1986). Counsel’s performance is not 

judged in a vacuum but by the degree that the performance deviates from the 

quality of representation customarily provided by the legal profession. Centers v.

Commonwealth, 799 S.W.2d 51, 55 (Ky. App. 1990).

ANALYSIS 

Lesser-included jury instruction for “physical injury” instead of “serious 

physical injury” relating to the kidnapping charge
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The jury found Robbins guilty of first-degree kidnapping with serious 

physical injury to Stout. Pursuant to Kentucky Revised Statutes (KRS)

509.040(1), “[a] person is guilty of kidnapping when he unlawfully restrains 

another person and when his intent is . . . (c) [t]o inflict bodily injury . . . .” Then, 

under subsection (2) of KRS 509.040, kidnapping is considered a Class A felony if 

“the victim has suffered serious physical injury during the kidnapping . . . .” 

Robbins argues the evidence was insufficient to prove that Stout 

suffered a “serious physical injury” and, therefore, his trial counsel provided 

ineffective assistance by failing to request the lesser-included instruction of 

“physical injury” instead. Specifically, Robbins claims that Stout waited three 

days before going to the hospital, so Stout’s injury was not “serious” as it did not 

require immediate medical attention. Robbins further argues that the jury only 

found him guilty of second-degree assault with “physical injury.” So, he reasons 

that the kidnapping instruction should have similarly only included the “physical 

injury” element.

In its order, the trial court held that trial counsel committed no error in 

not objecting or moving for a directed verdict, judgment notwithstanding the 

verdict (JNOV), or new trial regarding the kidnapping with “serious physical 

injury” instruction. The trial court explained that the evidence fully supported the 

instruction because Robbins caused physical injury to Stout which created a 
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substantial risk of death and, pursuant to KRS 509.040(2), “serious physical 

injury” is defined as “physical injury which creates a substantial risk of death, or 

which causes serious or prolonged disfigurement, prolonged impairment of health, 

or prolonged loss or impairment of the function of any bodily organ.” KRS 

500.080(15) (emphasis added). 

When claiming ineffective assistance of counsel for failure to object 

to a jury instruction, a defendant must show that the instruction was given in error. 

Commonwealth v. Davis, 14 S.W.3d 9, 11 (Ky. 1999), as modified (Jan. 20, 2000). 

“In other words, if the record does not support the conclusion that the objection 

should have been sustained, then there can be no ineffective assistance of counsel 

for failing to object.” Id. Therefore, “if the instructions were not in error, an 

evidentiary hearing to determine why defense counsel did not object to them would 

be futile and pointless.” Id.

Here, the kidnapping instruction was not given in error. Despite 

Robbins’ testimony to the contrary, the evidence showed that Robbins shot Stout 

through the chest; kicked Stout; shocked Stout with a Taser, and beat Stout, 

especially about the head. Cochran’s testimony that Stout’s clothes were 

“absolutely soaked in [blood]” also shows that Stout lost a substantial amount of 

blood. Likewise, Detective Miller testified about the amount of blood when he 

described the pains taken to mop and bleach the blood from the kitchen floor and 
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clean the adjacent living room carpet. Testimony also proved that Stout was so 

weakened from his injuries that he could not stand or sit upright in a chair and had 

become non-responsive as he went in and out of consciousness. 

From the foregoing evidence, the jury could reasonably infer that 

Stout was at a substantial risk of death by the time the ordeal ended. And, as the 

Kentucky Supreme Court held in Brooks v. Commonwealth, 114 S.W.3d 818, 824

(Ky. 2003), a serious loss of blood alone can create a substantial risk of death. 

Simply because Stout did not immediately go to the hospital does not change the 

life-threatening nature of his injuries. Moreover, Stout testified that he delayed 

going to the hospital due to his fear of Robbins’ retaliation, which several 

witnesses confirmed through their testimony that Robbins threatened to kill 

Cochran’s parents if Stout or Cochran went to the authorities. 

We also note that the jury was given two lesser-included instructions

to consider: (1) kidnapping (without the serious physical injury element); and (2) 

first-degree unlawful imprisonment. Thus, the jury had an option to find Robbins 

not guilty of kidnapping with serious physical injury and could have, instead,

found him guilty or not guilty of one of these lesser-included instructions. We 

further note that Robbins’ trial counsel presented a closing argument that advanced 

Robbins’ exact argument on appeal—namely, that Stout was not seriously injured. 

After hearing this argument, the jury still found Robbins guilty of kidnapping with 
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serious physical injury even though it could have found him not guilty of that 

charge and had the option to consider two lesser-included charges. 

Based on the totality of the evidence, the jury instruction for 

kidnapping with serious physical injury was warranted and not given in error. We 

do not believe the outcome of the case would have been different had Robbins’ 

trial counsel objected because the evidence supported the kidnapping with serious 

physical injury instruction. Accordingly, we conclude Robbins’ trial counsel was 

not constitutionally ineffective and Robbins was not prejudiced by her 

performance.

Independent testing of the Xanax

Robbins next argues that his trial counsel was deficient in not 

obtaining independent testing of the Xanax. He claims he told his trial counsel he 

wanted the Xanax tested “because something he ingested made him go crazy.” As 

support, he notes Collins, who was present during the incident, testified that 

Robbins was in a crazed state. Robbins reasons that “his actions were those of 

someone who had unknowingly ingested something other than [X]anax – a 

‘downer’” and the substance was “not conducive to his otherwise calm 

disposition.”

In response, the Commonwealth claims the Xanax was tested and 

Jamie Hibbard, with the Kentucky State Police (KSP) laboratory, testified that the 
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pills contained alprazolam, the active ingredient in Xanax. Thus, an independent 

laboratory would have arrived at the same results. 

 Robbins’ argument is entirely self-serving speculation. He provides 

no evidence that he ingested something that made him “go crazy.” In fact, at trial, 

Robbins never testified that he ingested something that made him “go crazy.” He 

only testified that Stout sold him fake Xanax. More likely, it seems that Robbins 

wanted the Xanax tested so he would know the exact components of the pills 

because he still suspects that Stout sold him “fake Xanax.” 

When a defendant claims ineffective assistance of counsel for not 

obtaining an expert, “he must establish how he was prejudiced by the alleged 

failure of counsel.” Parrish v. Commonwealth, 272 S.W.3d 161, 179 (Ky. 2008)

(citation omitted). Here, Robbins fails to establish how he was prejudiced by not 

having the Xanax tested by an independent laboratory. Moreover, “it is not 

necessary ‘in all cases [for] an attorney [to] hire a rebuttal expert witness in order 

to avoid being deemed ineffective.’” Commonwealth v. York, 215 S.W.3d 44, 48 

(Ky. 2007) (quoting Thompson v. Commonwealth, 177 S.W.3d 782, 786 (Ky. 

2005)). In this case, additional laboratory testing was not critical given the fact 

that Robbins never testified that he ingested something that made him “go crazy.” 

Therefore, his trial counsel was not constitutionally ineffective in not obtaining 

independent laboratory testing of the Xanax.
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Intoxication or diminished capacity jury instruction

Robbins argues his trial counsel was ineffective for not requesting

jury instructions on intoxication or diminished capacity. To support this argument, 

Robbins again claims that the “fake Xanax” had “some unknown compound in it” 

that changed his physiology and ability to control himself during the incident. 

In response, the Commonwealth claims the evidence did not support 

such instructions, as Robbins never testified that he used or ingested any drugs

before he beat Stout. Additionally, the Commonwealth argues that Robbins’ 

behavior during the incident was the same behavior he displayed during the

sentencing hearing when he cursed at the judge, spit on the prosecutor, and 

threatened the prosecution with the statement, “You better hope I never get out,” as 

he was taken away. And, at that time, the Commonwealth notes that Robbins was 

in custody and, presumably, not under the influence of any drugs.

Pursuant to KRS 501.080(1), voluntary intoxication is a defense to a 

criminal charge if it “[n]egatives the existence of an element of the offense[.]” The 

Kentucky Supreme Court has interpreted that statute to mean that the defense is 

only justified “where there is evidence reasonably sufficient to prove that the 

defendant was so drunk that he did not know what he was doing.” Fredline v. 

Commonwealth, 241 S.W.3d 793, 797 (Ky. 2007) (quoting Rogers v. 

Commonwealth, 86 S.W.3d 29, 44 (Ky. 2002)). “If, from the evidence presented, a 
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jury could reasonably conclude that the defendant was so intoxicated that he could 

not have formed the requisite mens rea for the offense, a voluntary intoxication 

instruction is warranted.” Id. 

The evidence in this case did not support a voluntary intoxication 

instruction. At trial, Robbins testified he knew exactly what he was doing. He 

assaulted and robbed Stout with the specific intention of recovering the $600 he 

believed he was owed. Robbins assaulted Cochran for the same reason. He never 

claimed that he lost his memory or control over his actions. To the contrary, his 

testimony confirmed that his mental and physical faculties were more than 

adequate.

Accordingly, Robbins’ counsel had no reason to believe that a jury 

instruction for intoxication or diminished capacity might be appropriate. Her 

decision not to request such instructions was within the bounds of reasonable trial 

strategy because the evidence did not support such an instruction. Thus, Robbins’ 

counsel was not ineffective for failing to request such an instruction. “It is not 

ineffective assistance of counsel to fail to perform a futile act.” Bowling v. 

Commonwealth, 80 S.W.3d 405, 415 (Ky. 2002), cert. denied, 538 U.S. 931, 123 

S. Ct. 1587, 155 L. Ed. 2d 327 (2003). 
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Alleged failure to investigate Stout’s drug trafficking

For Robbins’ last claim of error, he argues that his trial counsel 

provided ineffective assistance by failing or refusing to investigate Stout as a drug 

trafficker. He claims that, because Stout was a drug trafficker, Stout had reason to 

blame the incident on Robbins. Robbins also claims that Stout did not seek 

medical attention because he was a drug trafficker and not because he was afraid of 

retaliation by Robbins.

In response, the Commonwealth argues this claim is meritless because 

evidence was, indeed, introduced that Stout was a drug trafficker. Collins even 

testified that Cochran was upset when she arrived at the house the night of the 

incident because Robbins had contacted her family and told them that she and 

Stout sold drugs.

In its order, the trial court held that Stout’s livelihood was irrelevant 

to any issue tried. Robbins’ counsel was, thus, not ineffective for not pursuing 

such irrelevant information. We agree. The jury heard evidence that Stout was a 

drug trafficker and Robbins fails to establish how he was prejudiced by his 

counsel’s alleged failure to investigate Stout’s livelihood as a drug trafficker.

Necessity of an evidentiary hearing on the four alleged errors

Granting or denying an evidentiary hearing on allegations raised in an 

RCr 11.42 motion is limited to “whether the allegations in the motion can be 
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resolved on the face of the record . . . .” Fraser v. Commonwealth, 59 S.W.3d 448, 

452 (Ky. 2001). “A hearing is required if there is a material issue of fact that 

cannot be conclusively resolved, i.e., conclusively proved or disproved, by an 

examination of the record.” Id. Here, the trial court determined that Robbins’ 

motion did not raise an issue of fact or law that could not be conclusively resolved 

by an examination of the record. We agree. Therefore, an evidentiary hearing was 

unnecessary, and the trial court did not err in denying Robbins’ request for one. 

CONCLUSION

For the foregoing reasons, we affirm.

ALL CONCUR. 

BRIEFS FOR APPELLANT:

Cletus Robbins, Jr., pro se

Sandy Hook, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Leilani K.M. Martin

Assistant Attorney General

Frankfort, Kentucky