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Admissibility of homicide suspect’s first interview about fatal Concord fire in dispute

  • Richard Ellison is led into a courtroom in Merrimack County Superior Court in Concord on Nov. 20, during a pretrial hearing on pending motions. GEOFF FORESTER / Monitor staff

Monitor staff
Published: 12/1/2019 6:50:32 PM

Richard Ellison lived in the duplex at 282-284 N. State St. in Concord for several months in 2005 before the building’s owner died in a fire that authorities say was intentionally set.

Police interviewed dozens of witnesses following the blaze that killed Robert McMillan but Ellison’s name never surfaced until years later when police began investigating two related armed robberies in the Capital City.

Investigators planned to question Ellison, a suspect in the robberies, on Dec. 22, 2006, at the Coos County jail in West Stewartstown, where he was being held for violating a protective order. Then-Concord police Detective Todd Flanagan was on his way to the jail when he received a tip from Berlin police Detective Richard Plourde that placed Ellison at the duplex just weeks before the fatal fire.

Ellison had lived with building caretaker, Stephen Carter, at 282 North State Street for about four to five months before Carter had abruptly asked him to move out. McMillan lived next door at 284.

“I didn’t recall Mr. Ellison’s name coming up at all … to me it was new,” Flanagan testified during a Nov. 20 hearing in Merrimack County Superior Court. “And, I was a little bit surprised because we had talked to a lot of people in and out of that house – there were a lot of parties there at times, a lot of witnesses spoken to who had been there at some point.”

Flanagan recalled how he immediately called his supervisor to relay that he may have stumbled upon information related to the unsolved homicide. He said he would have to think quick on his feet and find an opportunity to ask Ellison about the fire at the duplex the year prior.

At the jail that day in 2006, Flanagan got the opportunity he was looking for. Although he didn’t come away with any groundbreaking details, he said he opened the door for the case’s lead detectives to question Ellison further about his connections to the duplex and the homicide.

Now, nearly 13 years later, attorneys are debating the admissibility of the 2006 jail conversation at a future trial, where Ellison will stand before jurors accused in McMillan’s death. While the defense is arguing that police should have read Ellison his Miranda rights before proceeding that day, prosecutors say he was not subject to custodial interrogation and could have ended the interview at any time.

Detectives did not arrest Ellison in 2006. Rather, prosecutors say the police investigation into Ellison continued for nearly a decade before they brought charges of first- and second-degree murder against him on Oct. 11, 2018.

The New Hampshire Attorney General’s Office recently called both Flanagan and Plourde to testify about their conversation with Ellison at the Coos County jail years ago in an effort to sway the court in favor of admissibility.

Flanagan recalled most clearly telling Ellison that he wanted to talk about the fire in 2005 at McMillan’s residence on North State Street, commonly referred to as being across the street from the New Hampshire State Prison for Men.

“He immediately said, ‘That’s a homicide. I’m not talking about that,’ ” Flanagan said from the witness stand. “His whole demeanor changed.”

The two detectives had met with Ellison at the jail’s library on Dec. 22, 2006, after he had previously conveyed to authorities that he had information about two Concord robberies from earlier that year. In a taped statement, Ellison implicated himself and his girlfriend Robin Theriault for attempting to rob Store 24 on South Main Street and for stealing $300 from the Food Basket on Washington Street. Ellison said he drove the getaway car.

At the end of that conversation, Flanagan said, he shut the tape recorder off and got right to the point: “I said I wanted to talk to him about the fire on State Street.”

He said he didn’t keep the recorder on because he didn’t want any information on the homicide to be part of the evidence in the robbery case, which he knew would be forwarded to the U.S. Attorney’s Office for prosecution. He also said he wanted to build a rapport with Ellison and that he wasn’t going to succeed in doing that if there was a recorder on the table.

Upon hearing Flanagan’s question, Ellison got fidgety, looked at the floor and put his hands up over his head, Flanagan recalled. Knowing Ellison was uncomfortable, Flanagan said he tried to assure Ellison that he was simply looking for information about “what might have happened” and wasn’t implicating Ellison.

That is when Ellison started to open up about how met Carter through various roofing jobs and how he helped Carter out with taking care of McMillan and the property, Flanagan said. He testified that at some point Ellison’s relationship with Theriault became an issue because she also started living at the duplex, which Carter didn’t like.

Through their investigation, police later learned that Ellison was also Carter’s source for crack cocaine, but that by fall 2005 Carter had found another dealer, according to court documents. Not long after, Carter kicked Ellison out.

“The defendant made several statements to different witnesses that he wanted to get even with Mr. Carter, that Mr. Carter owed him money, that he wanted to assault Mr. Carter for kicking them out, and that he would steal money from someone who owed him and if they had not paid,” prosecutors wrote in a recent motion.

At the time of the fatal fire, Ellison and Theriault were homeless.

“He was upset that he was asked to leave that residence after all the work he had done,” Flanagan testified at the Nov. 20 hearing.

As Ellison shared information about his prior connections to the duplex, Flanagan said he listened and did not challenge Ellison. He said he wasn’t there to interrogate Ellison, who knew he was free to end the interview at any time.

Defense attorney Jeremy Clemans is challenging the notion that Ellison was free to leave and voluntarily spoke to police about the fire and McMillan. The defense pressed both detectives during the Nov. 20 hearing about why they didn’t record the latter portion of the interview and on their ability to accurately remember the details of the conversation more than a decade later.

The court took the matter under advisement and will issue a written order at a later date. Ellison is scheduled to stand trial next year, beginning on March 24.

McMillan, who was 84 years old, was pulled from the fire and died a few days later at a Massachusetts hospital. He was known to friends as being an inventor, as well as a former college professor, who had unfinished projects scattered throughout his home.

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