                             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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