STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, 

Plaintiff Below, Respondent FILED 

October 1, 2013 

RORY L. PERRY II, CLERK vs) No. 12-1531 (Hampshire County 08-F-32) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Robert A. Crabill, 

Defendant Below, Petitioner 

MEMORANDUM DECISION 

Petitioner Robert Crabill, by counsel Jonathan Brill, appeals the Circuit Court of 

Hampshire County’s re-sentencing order entered on November 19, 2012. The State of West 

Virginia, by counsel Scott Johnson, filed its response. On appeal, petitioner alleges that the 

circuit court erred in denying his motion for the production of transcripts. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

In May of 2008, petitioner was indicted on one count of breaking and entering and one 

count of grand larceny after petitioner and his co-defendants allegedly broke into a home and 

stole multiple power tools. Petitioner’s first jury trial was held on July 11, 2008, and resulted in a 

mistrial after the jury failed to reach a unanimous verdict. In preparation for his second trial, 

petitioner filed a motion for the production of transcripts from the jury trial. The circuit court 

denied petitioner’s motion by order entered on July 23, 2008. In denying petitioner’s motion, the 

circuit court held that petitioner “[did] not meet the statutory requisites entitling him to a free 

transcript.” However, the circuit court directed the court reporter to forward to petitioner’s 

counsel a compact disc recording of the trial. Following his second jury trial, petitioner was 

found guilty on both counts. Petitioner was then sentenced to two consecutive terms of 

incarceration of one to ten years. Subsequently, petitioner was resentenced to afford him an 

opportunity to appeal his conviction by order entered on November 19, 2012. It is from this order 

that petitioner appeals. 

This Court has held “[w]here the issue on an appeal from the circuit court is clearly a 

question of law or involving an interpretation of a statute, we apply a de novo standard of 

review.” Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). 

Petitioner argues that the circuit court erred in failing to provide him with a copy of his trial 

transcript, for the purpose of presenting an effective defense at his second trial. Specifically, 

petitioner argues that he was prevented from impeaching the State’s witness. This Court has held 

that, “[u]nder the Equal Protection clause of the Fourteenth Amendment to the Constitution of 

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the United States the State must provide an indigent defendant with a transcript of prior 

proceedings resulting in a mistrial when that transcript is needed for an effective defense or 

appeal.” Syl., State v. England, 178 W.Va. 648, 363 S.E.2d 725 (1987). 

In England, this Court found that the circuit court’s denial of Mr. England’s transcript 

materially impeded his ability to proceed in his second trial and his due process rights were 

violated. This Court recognizes the two-prong standard set forth by the United States Supreme 

Court in Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed. 899 (1963), which examines 

“(1) the value of the transcript to the defendant in connection with the appeal or trial for which it 

is sought, and (2) the availability of alternative devices that would fulfill the same function as a 

transcript.” England, 178 W.Va. at 650, 363 S.E.2d at 727. 

Upon our review, the Court finds no error in the circuit court’s decision to deny 

petitioner’s motion for production of transcripts. In the present case, the Court declines to 

analyze the first factor in Draper because ‘“it can ordinarily be assumed that a transcript of a 

prior mistrial would be valuable to the defendant in at least two ways . . . as a tool at the trial for 

the impeachment of prosecution witnesses.”’ Id. at 651, 363 S.E.2d at 728 (quoting Britt v. North 

Carolina, 404 U.S. 226, 228 92 S.Ct. 431, 434 (1971)). As to the second factor set forth in 

England and Draper, this Court finds that petitioner was given an adequate alternative for the 

transcript in the first trial. Petitioner was given a compact disc recording of his first trial, which 

could have been used to impeach the State’s witness. Nevertheless, after reviewing both 

transcripts, we conclude that any error was harmless beyond a reasonable doubt. The trial 

transcripts reveal that even if petitioner was given a copy, he would not have been able to 

impeach the State’s witness because the witness’s testimony was consistent as to who broke out 

the window. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: October 1, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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