The man accused of setting a fatal fire in Concord in 2005 is questioning why prosecutors waited more than a decade to file murder charges even though their investigation of him had concluded years earlier.
Richard Ellison, 46, is now asking a judge to dismiss first- and second-degree murder indictments, which a grand jury handed up against him in early 2019. Ellison maintains the death of Robert McMillan was never a cold case but simply a case that the New Hampshire Attorney General’s Office deliberately sat on long after identifying him as their sole suspect. Ellison asserts authorities centered their investigation on him in December 2006, one year after the alleged arson at McMillan’s duplex on North State Street near the state prison.
However, authorities did not take Ellison into custody until 12 years later, on Oct. 12, 2018. That same day, he was scheduled to be released from the Strafford County jail in Dover on unrelated charges, records show.
“Unlike typical cold cases, there was no break in the case when the government finally decided to charge Mr. Ellison,” defense attorney Jeremy Clemans wrote in his motion to dismiss.
Clemans said investigators began focusing on Ellison after his ex-girlfriend Robin Theriault claimed she had information about the case and believed Ellison was involved. She gave a statement to police about the alleged arson after police arrested her in connection with two armed robberies in Concord, in part, on statements Ellison had just made that implicated himself and Theriault in those crimes, according to the defense motion. Clemans said Theriault wanted to “curry favor with prosecutors” and minimize her potential sentence in the robberies, and she succeeded.
“Once Ms. Theriault fingered Mr. Ellison for alleged involvement in this case, the government embarked on a one-track investigation aimed at attempting to corroborate Ms. Theriault’s claims,” Clemans said.
While Clemans asserts that the state attorney general’s office delayed prosecuting Ellison “for reasons that are not investigatory,” he said he needs more time to determine exactly how that delay prejudiced his client and is asking the court to schedule a hearing for early 2020 to argue the matter in further detail.
The state attorney general’s office has not yet filed its response to the defense’s motion to dismiss. However, following Ellison’s arrest in fall 2018, Assistant Attorney General Susan Morrell said the police investigation had been active since McMillan’s death.
“The Concord Police Department has been working on this investigation since 2005,” Morrell said. “The Cold Case Unit has been working with them off and on over the years.”
As part of that investigation, Concord police Detective Todd Flanagan and Berlin police Detective Richard Plourde traveled together to the Coos County jail in West Stewartstown in late December 2006 with respect to the pending robbery cases and the unsolved arson that killed McMillan. At the time, Ellison had just been arrested on a charge of attempted arson, accusing him of attempting to light Theriault’s porch on fire at her apartment in Berlin. He was also being held for allegedly violating a protective order involving Theriault. (A jury later acquitted him in that apartment fire.)
The two detectives interviewed Ellison at the jail’s library where they advised him that he was not obligated to speak about the robberies in Concord and he was not under arrest. Ellison said he understood and agreed to give a taped statement in which he implicated himself and Theriault for attempting to rob Store 24 on South Main Street and fleeing with $300 from the Food Basket on Washington Street. Ellison said he drove the getaway car.
Clemans said the detectives waited until the recorder was turned off before asking Ellison questions about the fire that killed McMillan.
The investigative report states, “Mr. Ellison supposedly immediately put his hands in the air, then interlaced his fingers behind his head, broke eye contact by looking down, and responded: ‘That’s a homicide … (ellipses in report) I’m not going to talk about that.’ Although the detective’s report attempts to attribute a direct quote to Mr. Ellison, the detective himself relied upon the use of ellipses, implying that more was said but not recorded/memorialized verbatim,” Clemans said.
Even though Ellison indicated he did not want to continue the conversation, the detectives pressed forward, Clemans said. He argues that the detectives’ actions contradict their statement that Ellison was free to leave and not under arrest. Clemans said Ellison should have been read his Miranda rights and, because he was not, the conversation should be inadmissible at the homicide trial.
McMillan was 84 years old in December of 2005 when a fire destroyed his duplex at 282-284 N. State St.
McMillan couldn’t get around on his own and his live-in caretaker who was out the night of the fire. He was pulled from the house and died at a Massachusetts hospital on Dec. 9, 2005. An autopsy found that he died of “thermal injury,” or injury from heat, according to Monitor reports at the time.
Four days later, authorities classified the blaze as arson and ruled McMillan’s death a homicide. No arrests were made until police took Ellison into custody in fall 2018.
(Alyssa Dandrea can be reached at 369-3319 or at adandrea@cmonitor.com.)