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Staff photo by Don Himsel Gary Marchand arrives in the courtroom at Nashua District Court Monday, September 28, 2009 for his arraignment. Marchand, of Hollis, is charged with murdering his wife. The charges allege that he beat his wife to death after binding her hands and feet, and gagging her.
Thursday, March 31, 2011

Hollis man’s murder trial delayed

NASHUA – The trial of a Hollis man accused of beating his wife to death will be delayed to allow prosecutors to appeal a judge’s ruling that their own psychiatrist can’t question the man about the murder, court records show.

On Tuesday, Hillsborough County Superior Court Judge Diane Nicolosi ruled that to force Gary Marchand to talk about the killing would violate his constitutional right to avoid self-incrimination but allowed prosecutors to appeal her decision to the state Supreme Court.

That means Marchand’s trial, scheduled to begin March 24, will be delayed considerably.

Marchand is accused of beating and stabbing his estranged wife, Phyllis Marchand, 45, to death in their home at 458 Silver Lake Road last year, about two months after the couple separated and put the house up for sale.

Nicolosi had previously ruled to allow at trial evidence that Marchand was upset with his wife because she was having an affair, leaving him and had been selling his belongings and tapping into his retirement account.

Marchand and prosecutors can cite those factors as they relate to his mental state, Nicolosi ruled. However, the judge ruled Marchand’s lawyers could not argue for conviction on a lesser charge of manslaughter based on those factors because Marchand had known of his wife’s infidelity and financial dealings for some time beforehand and none of it was enough to provoke a reasonable person to murder.

Prosecutors argue Marchand had a history of abusive, violent behavior, but Nicolosi ruled that can’t be used as evidence that he killed his wife. Phyllis Marchand’s statements to friends that she feared him and feared he would beat or kill her can be used as evidence, however, she ruled.

Marchand has not admitted to killing his wife but will argue at trial that if he did, it’s because he was insane. He has been jailed since his arrest Sept. 25, shortly after the murder and faces a first-degree murder charge, which carries a sentence of life in prison without parole.

According to his lawyers, Marchand had been seeking treatment for “serious psychiatric problems” since 2004.

Marchand was hospitalized Aug. 10, 2009, after two suicide attempts, his lawyers wrote, and he remained for 10 days at Southern New Hampshire Medical Center, where he was diagnosed with major depressive disorder and severe intermittent explosive disorder, his lawyers wrote. In addition to being suicidal and depressed, Marchand was suffering from insomnia, anxiety, nightmares and paranoia, they wrote.

Marchand was discharged Aug. 20, 2009, with prescriptions for new and increased medication, and he continued with outpatient treatment at Community Council.

A friend of Marchand’s called police on the afternoon of Sept. 25 after dropping Marchand off at Southern New Hampshire Medical Center where he was treated for a cut to his wrist from an apparent suicide attempt, police said. Marchand allegedly confessed to his friend that he had killed his wife three days earlier, police said.

When Hollis police went to check the house, they found Phyllis Marchand’s body in the bathtub, wrapped in a shower curtain, bound and gagged. There was blood all over the kitchen floor, and it was clear that she had been murdered, police said.

Marchand has not seen any psychiatrist since the murder or spoken with any psychiatrist about it, Nicolosi noted, and the doctors whom his lawyers plan to use as witnesses will only be able to testify about his condition, treatment and prognosis.

To force Marchand to be questioned by a state psychiatrist regarding the murder and events surrounding it would thus violate his right to avoid incriminating himself, Nicolosi ruled. If Marchand chooses to testify at trial, however, the judge ruled, he would have waived that right and the trial could break for two days, to give the state’s expert time to examine him.

Furthermore, Nicolosi ordered that the defense share reports and records of Marchand’s treatment and allow the state’s psychiatrist, Dr. Albert Drukteinis, to examine Marchand without questioning him about the murder.

Andrew Wolfe can be reached at 594-6410 or awolfe@nashuatelegraph.com.