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File photo by Don Himself
Gary Marchand in court, October 2009.
Thursday, March 29, 2012

Court to decide whether accused Hollis murderer must submit to psychiatric evaluation

CONCORD – The state Supreme Court will hear arguments next week about whether a Hollis man accused of beating and stabbing his wife to death should have to submit to an interview with a state psychiatrist.

State prosecutors are appealing a superior court judge’s decision that a state psychiatrist cannot interview Gary Marchand about the Sept. 25, 2009, murder of Phyllis Marchand, 45.

Last March, Hillsborough County Superior Court Judge Diane Nicolosi ruled that forcing Gary Marchand to talk about the killing would violate his constitutional right against self-incrimination. She allowed prosecutors to appeal her decision to the Supreme Court, and a hearing is scheduled before the high court at 9:30 a.m. April 5, according to the court’s schedule.

Marchand’s first-degree murder trial was originally scheduled to begin March 24, 2011. He has pleaded innocent by reason of insanity, court records show.

Marchand was arrested Sept. 25, 2009. He has not admitted to killing his wife but he will argue at trial that if he did, it’s because he was insane.

He has been jailed since his arrest and faces a charge of first-degree murder, which carries a sentence of life in prison without parole.

Marchand is accused of beating and stabbing Phyllis Marchand, from whom he was estranged, at their home at 458 Silver Lake Road about two months after the couple separated and put the house up for sale.

A friend of Gary Marchand’s called police on the afternoon of Sept. 25, 2009, after dropping off Marchand 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 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 she had been murdered, police said.

Gary Marchand had not seen any psychiatrist since the murder or spoken to a psychiatrist about it when Nicolosi made her ruling, and the doctors whom his lawyers plan to use as witnesses will only be able to testify about his condition, treatment and prognosis.

Forcing Marchand to be questioned by a state psychiatrist about the murder and the events surrounding it would therefore violate his right to avoid incriminating himself, Nicolosi ruled.

If Marchand chose to testify at trial, however, he would waive that right and essentially open the door to have the state’s expert interview him.

The trial would break for two days to allow that examination, Nicolosi ruled.

Senior Assistant Attorney General Janice Rundles said the state has a right to file the appeal before moving forward with the prosecution, but Marchand also could file a motion that the delay violated his right to a speedy trial.

She also said the court could take anywhere from a month or two to a year to issue a decision, but she expects a fairly quick resolution given that the issue is a narrow one and is an appeal of a pretrial ruling.

Nicolosi also ruled that the defense has to 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.

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 this 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.

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

“At the time of Ms. Marchand’s death, Mr. Marchand was suffering from serious psychiatric problems, for which he had been seeking treatment for a number of years,” his lawyers wrote in a motion last year.

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.

Joseph G. Cote can be reached at 594-6415 or Also follow Cote on Twitter (@Telegraph_JoeC).