State prosecutors contend that the man accused of setting a fatal fire in Concord in 2005 disposed of his gasoline-stained clothes, threw the victim’s cellphone onto the street and hid roofing equipment in the woods that he’d stolen from the residence.
A key witness maintains she saw Richard Ellison, 47, take steps to conceal his involvement in the murder of 84-year-old Robert McMillan at the duplex at 282-284 N. State St. 15 years ago. Further, authorities say Ellison started a rumor that his drug dealer – who also sold crack cocaine to McMillan’s live-in caretaker at the time – had started the fire on Dec. 9, 2005, in retaliation for an overdue drug debt.
But exactly which of those details will be admissible at trial and how the judge will instruct jurors to interpret the evidence remains in dispute. The volume of pretrial issues, as well as last-minute requests for out-of-court sworn testimony from witnesses, means Ellison will not stand trial in Merrimack County Superior Court in Concord until early May. Jury selection in the case is still scheduled to begin in March.
Ellison’s attorneys have objected to prosecutors’ requests to introduce evidence at trial, which may speak to Ellison’s motive, intent and state of mind at the time of McMillan’s murder. They are also contesting the admissibility of statements Ellison made about the homicide to law enforcement years ago, in part, because they were in the context of his arrest on unrelated armed robbery charges.
In the summer months preceding the murder, Ellison and his then-girlfriend, Robin Theriault, lived with McMillan’s caretaker, Stephen Carter, in his half of the North State Street duplex. But Ellison and Carter had a falling out after Carter began buying his crack cocaine directly from Ellison’s dealer, according to court documents. Not long after, Carter kicked out Theriault and Ellison, who became angry and made several statements to witnesses that he wanted to get even with Carter.
Prosecutors maintain that evidence establishing Ellison’s relationship with Carter, as well as his familiarity with the duplex is key for jurors to understand as they consider a possible motive for the murder.
Aside from the specific legal arguments, a point of contention among attorneys is statements made by Theriault, who a year after the fatal fire told police she had information about the case and believed Ellison was culpable. At the time, Theriault was facing charges in connection with two armed robberies in Concord, for attempting to rob Store 24 on South Main Street and for stealing $300 from the Food Basket on Washington Street. Both she and Ellison were ultimately convicted in federal court.
“The state’s case remains and has always centered on the shaky foundation of jailhouse informant, Robin Theriault, who received substantial consideration for alleging that Mr. Ellison was responsible for this arson,” wrote defense attorney Jeremy Clemens who is arguing there is no proof Ellison tried to cover-up the alleged arson and murder.
Clemens said previously that Theriault wanted to “curry favor with prosecutors” and minimize her potential sentence in the robberies, and she succeeded.
Theriault was convicted of more serious charges but served less prison time than Ellison, who was released on Oct. 12, 2018. That same day, the New Hampshire Attorney General’s Office charged Ellison with first-degree murder in connection with McMillan’s death and he has remained incarcerated ever since.
Theriault claims that Ellison confessed to starting the fire in Concord on the night of Dec. 9, 2005, after returning home to her sister’s residence. She said his shoes were saturated in gasoline, he was visibly shaking and drunk, according to court documents.
McMillan was pulled from the fire and died a few days later at a Massachusetts hospital.
In police interviews, Theriault detailed how Ellison disposed of his clothing, McMillan’s phone and the roofing equipment he’d stolen from the North State Street complex. But Clemens said Theriault’s statements aren’t corroborated by physical evidence. He said police found no proof of a fire set to Ellison’s clothes and were unable to confirm where he had purchased the shoes he was wearing that night, even though Theriault directed them to retailers at the Tanger Outlets in Tilton.
Before a judge Thursday in Concord, Senior Assistant Attorney General Susan Morrell, who is the lead prosecutor on the case, said the issues defense attorneys continue to raise about Theriault speak to her credibility as a witness and not specifically to the admissibility of the evidence. She said it should be up to jurors to decide who to believe and who not to believe, but that the court shouldn’t withhold key details that could speak to Ellison’s motive and to his potential guilt.
Morrell is asking that jurors receive instruction explaining that the destruction or disposal of evidence, as well as false statements intended to exonerate, are, in effect, an admission of guilt.
Additionally, Morrell has filed a motion arguing that statements Ellison made to police at the time of his arrest in connection with the armed robberies in Concord in 2006 should be further admission to the murder. Ellison acknowledged at that time that he knew the fire across from the state prison complex was a homicide. He told a detective “[y]ou’ve already spoken to Robin. There’s nothing I can say to defend (or help) myself,” Morrell restated in her recent motion.
“Rather than deny his involvement in the arson/murder, the defendant said that there was nothing he could say to defend himself,” she wrote. “Even after he was told that his version of events could change things, he declined to respond.”
Clemens is objecting to prosecutors’ characterization of that exchange and its admissibility because police had not read Ellison his Miranda rights. Ellison had not been arrested for murder at that time.
“While the detectives may have had the subjective intent to question Mr. Ellison about the events that now give rise to the present charges before this Court, there is no evidence to support the assertion that Mr. Ellison was referring to, contemplating, the same subject matter/topic,” Clemens wrote in his objection.
Should Ellison testify in his own defense at trial, prosecutors are seeking to admit evidence of his prior convictions, dating back to 2000. Defense attorneys say armed robbery-related convictions from 2009 are admissible under the law as long as the jury receives proper instruction; however, they are objecting to the admissibility of three earlier convictions because they fall outside of the 10-year time frame.
State law allows a defendant or testifying witness to be impeached on his or her prior convictions but there is a 10-year limitation. Ten years could have passed since the conviction or his or her release from confinement, whichever is later.
Morrell is arguing that Ellison’s credibility is of key importance in this case and he’s the only person who is a direct witness to the blaze. He was twice convicted of lying or making false reports, and that’s information he should be confronted on, she said.
Clemens says the introduction at trial of the dated criminal history is prejudicial toward Ellison.
Judge John Kissinger Jr., who will preside over the month-long trial, is scheduled to hear arguments on several pending motions during three days of hearings, scheduled to begin Wednesday.
Jury selection in the case is slated to start on March 17, and it is expected that attorneys will choose 12 jurors and six alternates. The trial will begin on May 4.
(Alyssa Dandrea can be reached at 369-3319 or adandrea@cmonitor.com.)