CONCORD — A Hollis man who claims he was insane when he murdered his wife in 2009 must submit to a psychological examination by a state expert, but prosecutors may only use the exam's results to rebut his insanity claim, not to prove he committed the killing, according to a Supreme Court ruling.

The nine-page ruling overturned a lower court order of Judge Diane Nicolosi who ruled it was unconstitutional to compel Gary E. Marchand, 55, accused of murdering his wife, Phyllis Marchand, 45, on Sept. 25, 2009, to undergo a psychological evaluation by the state's expert. Marchand maintained it violated his right against self-incrimination.

The Supreme Court, however, ruled the requirement does not violate either the state or U.S. Constitution. However, the court cautioned that the critical line separating the issues of guilt and insanity must be “assiduously guarded” to ensure the defendant's right against self-incrimination is not violated.

As a result, the court ruled a judge may order a psychiatric examination by the state's expert but the results may be used only to rebut the defendant's insanity claim.

“Only the expert's ultimate conclusion should be provided to the prosecution and defense prior to trial. Any other information derived from or related to the examination may be shared with the prosecution only at the point in the trial when such information is necessary for the prosecution to prepare for its rebuttal to the defendant's insanity claim. Courts should err on the side of caution and delay release of such information for as long as reasonably possible. In no circumstances may the prosecution use anything from the examination to prove an element of the crime, absent an affirmative use by the defendant of his or her expert testimony to refute the elements,” according to the court decision.

David M. Rothstein, deputy chief appellate defender, declined comment on the decision. Assistant Attorney General Thomas E. Bocian, who argued the case before the Supreme Court, is no longer with the prosecutor's office.

Marchand planned to go to trial without presenting an expert witness as to his insanity, instead relying on the testimony of five physicians who provided psychiatric treatment for him prior to the murder. It was the first time a defendant raised an insanity defense with no plan to call his or her own expert witness.

As a result, Judge Nicolosi looked at the potential consequences of forcing a defendant to undergo an examination and concluded the state would have an advantage in front of a jury over the defendant. “The inevitable result of the ruling the state seeks would be to force the defendant to assist the government to hold him criminally accountable when the defendant has not voluntarily waived his rights against self-incrimination,” she ruled.

The Supreme Court pointed out in its ruling that an insanity defense is an affirmative defense, that is, the defendant has the burden of proving insanity by clear and convincing evidence, a decision the high court issued in 1978. Prior to that, the state had the burden of proving a defendant was sane when he committed the crime.

“Thus, the State's proposed examination would be used only to rebut the defendant's claim of insanity — that is, to counter the defendant's claim that he was 'not criminally responsible for his conduct,'” according to the court ruling. “...In sum, evidence rebutting an insanity defense does not concern an element of the crime and, thus, does not directly concern guilt.”

Marchand is accused of beating and bounding his estranged wife, who was found murdered in a bathtub inside their Hollis home. She died from asphyxiation from being placed face down in the bathtub after being beaten, according to prosecutors.