The state’s Supreme Court on Wednesday unanimously upheld the second-degree murder conviction of a man found guilty of setting fire to a Concord home in 2005, killing the 84-year-old homeowner.
The homicide remained unsolved for more than a decade before Richard Ellison, now 53, was arrested in 2018 and convicted four years later. He had lived in the house some months before the fire, before being kicked out when his girlfriend moved in.
Ellison appealed his conviction on several grounds, arguing in part that the trial court judge failed to allow his lawyers to adequately cross-examine a key witness.
At an earlier trial in 2021 that ended in a hung jury, the witness, Matthew York, had testified that Ellison admitted to setting the fire during a conversation the pair had in 2006 at the Coös County House of Corrections. But a year later, when called to testify again at the 2022 trial, he claimed he could not recall the conversation due to a traumatic brain injury he experienced in 2013.
The trial court judge, John Kissinger, allowed prosecutors to play audio from York’s 2021 testimony, but required the defense to cross-examine him before that audio was played due to the time required to prepare it. Kissinger also substantially limited the scope of the cross-examination.
The Supreme Court ruled that Kissinger’s decisions were reasonable, given the circumstances. York, they said, was a reluctant witness who had been required to drive from Florida to testify due to the terms of his parole, and it was not clear he would wait multiple days for the audio to be prepared.
In addition, allowing the defense a full cross-examination would likely have just resulted in York “simply repeating that he could not remember,” the justices wrote.
The Supreme Court also ruled that any potential error by an expert witness specializing in forensic video did not affect the verdict and that Kissinger properly decided a discovery issue on the disclosure of expert reports.
Ellison was sentenced to 40 years to life for the murder.
The fire broke out on North State Street across from the New Hampshire State Prison in the early morning hours of Dec. 9, 2005, and quickly engulfed the duplex where Robert McMillan lived. McMillan, a former college professor, had experienced a stroke a month before and could not walk or speak.
A caretaker, who lived on the other side of McMillan’s duplex, had previously let Ellison live in his basement, before ultimately kicking him out. On the night of the fire, the caretaker was not home.
In addition to the audio-recorded testimony from York, prosecutors presented evidence from Ellison’s former girlfriend, who said that she was asleep on the night of the fire when Ellison returned smelling of gasoline and possessing a phone that was not his.
She testified that Ellison admitted to going to the house to retrieve his belongings and look for money from the caretaker. She said he admitted to setting a fire to “cover up his tracks.”
McMillan’s phone was later found discarded near the girlfriend’s sister’s home.
The girlfriend died between the first and second trials, and audio of her testimony was also used in the trial that resulted in a conviction.
Police did not arrest Ellison until 2018, but it appears they may have linked him to the arson as early as 2006, according to previous Concord Monitor reporting. It was unclear what investigative developments occurred in the intervening years. Ellison was arrested on the day he was set to be released from the Strafford County jail on unrelated charges.
Previous Concord Monitor reporting was used in this story.