State of West Virginia v. Edward James Perod, 15-0947

Background

In December 2014 petitioner Edward Perod set multiple small fires in his basement during an altercation with his wife; she escaped and he cut his wrists; first responders extinguished the fires.
A grand jury indicted Perod for first-degree arson, unlawful restraint, domestic battery, and domestic assault; unlawful restraint was later dismissed at trial.
Lieutenant R.M. Lanham (fire investigator) testified to fire origin/causation, that fires were set near many combustibles, and that if they reached those materials catastrophic damage could have resulted; he also testified he attempted to interview Perod at the hospital but Perod declined.
At trial Perod was convicted of first-degree arson and acquitted of domestic battery and assault; he was sentenced to 15 years and the court ordered restitution to the insurer (Farmers) for $37,234.17.
Perod appealed, arguing (inter alia) improper admission of testimony (speculative/unfairly prejudicial), prosecutorial/grand jury misconduct, failure to grant a mistrial or give a curative instruction about invocations of rights, prejudicial judicial remarks, and error in restitution amount and failure to find ability to pay.

Issues

Issue	State's Argument	Perod's Argument	Held
Admissibility of Lt. Lanham’s testimony about potential spread/damage	Testimony by qualified fire expert was relevant to willful/malicious intent and not unduly prejudicial	Testimony was speculative and Rule 403 unfairly prejudicial/irrelevant	Admissible — probative value outweighed prejudicial effect; expert causation testimony appropriate
Grand jury testimony re: Perod declining interview / intent (murder-suicide)	Grand jury may consider broad evidence; statements did not come from prosecutor and did not substantially influence indictment	Statements biased grand jury and infected indictment because they referenced invocation of rights and intent	No dismissal — statements did not substantially influence the grand jury nor raise grave doubt; prosecutor did not elicit or repeat them
Mistrial / curative instruction for Lt. Lanham’s hospital-interview testimony	No prosecutorial use of Perod’s invocation; immediate objection preserved and testimony was limited	Testimony put Perod’s exercise of rights before jury and required mistrial/curative instruction	No mistrial; record did not support claim that Perod’s invocation was used against him; failure to request curative instruction waived issue
Judge’s remarks in jury presence during cross-examination	Judge entitled to control trial; brief admonition was procedural, not an opinion	Remarks prejudiced Perod and amounted to judicial opinion against him	No prejudicial error — judge’s brief admonition fell within trial-control discretion and did not express opinion on evidence
Restitution amount to insurer ($37,234.17)	Restitution to insurer is permitted when insurer compensated victims; the adjuster’s testimony supported the amount	Amount unsupported; Lt. Lanham estimated ~$10,000 in fire damage; court failed to find ability to pay	Affirmed — insurance adjuster’s testimony supported the award; Perod did not preserve ability-to-pay claim and court need not recite findings in every case (Lucas principles)

Key Cases Cited

State v. Lucas, 201 W.Va. 271 (1997) (presumption in favor of full restitution; factors for restitution decisions)
State v. Wasson, 236 W.Va. 238 (2015) (court may order restitution to insurer to extent insurer compensated victim)
Bank of Nova Scotia v. United States, 487 U.S. 250 (1988) (indictment dismissal appropriate only if grand-jury violation substantially influenced indictment or grave doubt exists)
United States v. Mechanik, 475 U.S. 66 (1986) (standards for defects in grand-jury proceedings and when dismissal is required)
State v. Boyd, 160 W.Va. 234 (1977) (defendant’s pretrial silence cannot be used to impeach at trial)
State v. Derr, 192 W.Va. 165 (1994) (Rule 403 balancing and deference to trial court’s discretion on evidentiary rulings)
State v. Thompson, 220 W.Va. 398 (2007) (trial judge may control trial proceedings but should not intimate opinions on evidence)