Jurors will hear evidence that the man accused of setting a fatal fire in Concord in 2005 disposed of his gasoline-stained clothes, threw the victim’s cellphone into a puddle on Loudon Road and hid roofing equipment he is accused of taking on the night of the homicide.
However, the cancelation of jury trials due to the coronavirus outbreak means the murder case is on hold until at least September.
Judge John Kissinger Jr. recently ruled that although Richard Ellison was never formally charged with falsifying physical evidence or theft, his actions immediately proceeding the blaze should be considered by jurors because they’re directly tied to the fatal fire. Further, any evidence that Ellison stole from the duplex at 282-284 N. State St. on the night of the fire places him at the scene of the crime, Kissinger wrote.
Ellison, 47, faces charges of first- and second-degree murder in connection with the death of 84-year-old Robert McMillan in late 2005. McMillan, who couldn’t get around on his own and had a live-in caretaker, was pulled from the house and later died of thermal injuries at a Massachusett’s hospital.
Prosecutors allege that Ellison also physically assaulted McMillan just before setting fire to the home. An autopsy showed that McMillan had suffered recent rib fractures. Because Ellison is not standing trial for assault, his attorneys argued the evidence should be inadmissible at trial. Kissinger disagreed.
“The Court finds that evidence that Mr. Ellison allegedly assaulted Mr. McMillan minutes before the fatal fire is not unfairly prejudicial in a case where the State’s focus will be that Mr. Ellison murdered the very same victim shortly after the alleged assault,” he wrote.
Ellison, who was arrested in late 2018, was scheduled to stand trial beginning next month in Merrimack County Superior Court in Concord. Now, like other jury trials, the case is on hold due to the coronavirus while Ellison remains incarcerated without bail at the county jail in Boscawen.
Earlier this year, attorneys appeared in court for several day-long hearings to argue the admissibility of evidence in the case, including Ellison’s prior convictions, his statements to police about the fire, and expert testimony from forensic analysts and a local investigator. While many of those pretrial issues have been resolved, prosecutors are asking Kissinger to reconsider a decision denying their request to introduce evidence of Ellison’s prior drug use and sales.
In the months before McMillan’s death, Ellison and his then-girlfriend, Robin Theriault, lived with McMillan’s caretaker, Stephen Carter, in his half of the duplex. But prosecutors say Ellison and Carter had a falling out after Carter began buying crack cocaine directly from Ellison’s dealer. Soon after, Carter kicked the couple out, and witnesses say Ellison became angry and made several statements that he wanted to get even with Carter.
Senior Assistant Attorney General Susan Morrell maintains that drug relationship is critical to the case. When Carter cut Ellison out of the equation after several months, Ellison was no longer turning a profit and his lodging at the duplex was in jeopardy, she said. That fallout is what prosecutors allege motivated Ellison to steal from Carter and set the fire.
Ellison’s attorneys are contesting the state’s motion to reconsider. Defense attorney Jeremy Clemans said he questions the frequency of those drug transactions. If Ellison sold drugs to Carter on just a couple of occasions and in small amounts, “it does not seem realistic that becoming cut-off from said sales would provide a motive to commit the alleged crime in this case,” he argued.
Kissinger has not yet issued an updated opinion on the issue.
In an earlier ruling, he denied a defense motion to exclude two expert witnesses, Grant Fredericks and Larry Compton They will testify about video evidence collected by investigators from outside the New Hampshire State Prison – located across the street from the duplex – and from an area gas station. Concord police Detective Wade Brown will also take the stand to discuss data extraction from Ellison’s cellphone.