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When Canadian Tort Law was first published in 1972, it became the first treatise on the law of torts in Canada. The eleventh edition continues the standard of excellence achieved by each previous edition. As the treatise most commonly cited by the Supreme Court of Canada and other Canadian courts, Canadian Tort Law has greatly influenced the development of tort law in Canada.
Chapter 3 – new case law discussion of consent with regards to “intentional” torts, including new analysis on consent in the medical context and defense of public necessity.
Chapter 6 – new analysis on the Modified Duty of Care Framework stemming from Cooper vs. Hobart and Edwards vs. Law Society of Upper Canada; Duty to Confer Benefits: Nonfeasance and Misfeasance; Duty to Rescue; and Alcohol-Related Affirmative Duties.
Chapter 7 – new analysis of remoteness of damage and foreseeability, including discussion of new Supreme Court of Canada cases dealing with remoteness and foreseeability such as Rankin (c.o.b. Rankin’s Garage & Sales) v. JJ, as well as new discussion of “thin skull” cases and cases involving intervening acts (such intentional and criminal conduct).
Chapter 8 – Substantially revised chapter on negligent infliction of mental injury taking into account recent Supreme Court of Canada decisions Mustapha v. Culligan of Canada Ltd and the 2017 decision Saadati v. Moorhead which have profoundly shaped tort law’s response to mental injury.
Chapter 9 – discussion of the influential 2017 Supreme Court of Canada decision Deloitte & Touche v. Livent Inc. (Receiver of) on its impact with respect to the negligent infliction of pure economic loss, including indicia which can be used as a guide for the recognition of a duty of care, and other new cases on reasonable reliance.
Chapter 10 – Defences to Negligence: The Conduct of the Plaintiff includes new discussion concerning voluntary assumption of risk, including the narrowing of the definition of volenti and new case law on illegal conduct on the part of the plaintiff.
Chapter 11 – A new analysis of strict liability including the scope of Rylands v. Fletcher.
Chapter 12 – New examination of how aspects of both public and private nuisance, and the principle from Rylands and Fletcher, have been clarified through decisions in a number of appellate court cases such as Smith v. Inco Limited, Saik'uz First Nation and Stellat'en First Nation v. Rio Tinto Alcan Inc, and George v. Newfoundland and Labrador.
Chapter 13 – updated analysis of defences to product liability and the special category of “inherently dangerous things and abnormal use”.
Chapter 14 – new discussion on government negligence liability and Charter damage claims.
Chapter 15 – discussion of new cases on the scope of occupier’s liability including public property adjacent to occupier property and waiver of liability cases.
Chapter 16 – substantially re-written chapter on defamation, including new discussion on libel vs. slander, fair comment, remedies, and new developments with anti-SLAPP cases, privacy torts and cyberbullying legislation.
Bruce Feldthusen, B.A., LL.B., LL.M., S.J.D., is a Professor of Law at the University of Ottawa and a member of the Bar of Ontario. He was a Professor of Law at the University of Western Ontario from 1977 to 1999 and served as Dean of the Common Law Section of the University of Ottawa from January 2000 to June 2013. He is a member of the American Law Institute and a past president of the Canadian Law Deans. Professor Feldthusen serves as Canada's representative to the World Tort Society. He has taught law in Canada, the United States and Australia and was the Research Director for the Ontario Law Reform Commission's 1989 study on Exemplary Damages, which has been cited with approval and adopted in many common law jurisdictions in Canada and abroad. Professor Feldthusen is well known and internationally recognized for his treatise Economic Negligence, now in its sixth edition, which has been relied on by the Supreme Court of Canada and which now provides the organizing framework for all negligence actions in that field. He is co-authors with the late Honourable Allen M. Linden and Professor Lewis Klar of the popular casebook Canadian Tort Law (LexisNexis Canada). Feldthusen’s analysis of pure economic loss has been adopted by the Supreme Court of Canada and now provides the organizing framework for all negligence actions in that field. He was one of the first legal academics to study civil remedies for victims of sexual assault. Feldthusen was the research director for the Ontario Law Reform Commission’s 1989 study on Exemplary Damages, which has been cited with approval and adopted in many common law jurisdictions in Canada and abroad. His recent work has concentrated on the law of negligence as applied to government and statutory public authorities. He has also practised law and works frequently as a litigation consultant on issues in tort law. He is co-author with the late Honorable Allen M. Linden of the Torts and Negligence volumes of Halsbury's Laws of Canada, and co-author with Margaret Isabel Hall, Erik S. Knutsen and Hilary Young of Canadian Tort Law, 11th Edition and Canadian Tort Law, 11th Edition - Student Edition.
The late Honourable Allen M. Linden, O.C., Q.C., B.A., LL.B., LL.M., J.S.D., was a Judge of the Federal Court of Appeal from 1990 to 2009. Previously, he was a Professor of tort law at Osgoode Hall Law School of York University in Toronto from 1961 to 1978, and acted as Founding Executive Director of the Canadian Institute on the Administration of Justice from 1974 to 1978. He was appointed as a Trial Judge on the Superior Court of Ontario from 1978 to 1990, and served as President of the Law Reform Commission of Canada from 1983 to 1990. Mr. Linden was a member of the American Law Institute. He taught law in the United States, Australia and the United Kingdom, and taught part-time at the University of Ottawa and at Pepperdine University, School of Law in California. In 1965, he authored a statistical study on Compensation for Auto Accidents, which led the Province of Ontario to adopt a no-fault auto insurance plan in 1969, which influenced other provinces to follow. He has written several books and many articles about torts, which led to the award of the Professor John G. Fleming Award for Outstanding Scholarship in Tort Law. In 2011, he received the David Walter Mundell Medal for his distinguished contribution to law and letters. On July 1, 2015, Justice Linden was inducted to membership in the Order of Canada by Governor General David Johnston. He is co-author, with Bruce Feldthusen, of the Torts and Negligence volumes of Halsbury's Laws of Canada and of Canadian Tort Law, 11th Edition and Canadian Tort Law, 11th Edition - Student Edition. He is also co-author, with Stephen E. Firestone, of Butterworths Ontario Motor Vehicle Insurance Practice Manual. Mr. Linden passed away after completion of Canadian Tort Law - Cases, Notes & Materials, 15th Edition but before publication.
Margaret Isabel Hall, B.A. (Hons), LL.B., LL.M.,Ph.D., is an Associate Professor in the Faculty of Law at Thompson Rivers University, British Columbia, Canada where she teaches Torts, Advanced Torts, and Wills and Estates. Prior to joining Thompson Rivers as a founding faculty member, Prof. Hall taught torts at the University of British Columbia Faculty of Law, and the University of Ottawa Faculty of Law (Common Law), Prof. Hall has also worked in law reform (for the British Columbia Law Institute), and is the author of numerous law reform publications. Prof. Hall is the co-author of the Law of Nuisance in Canada, published by LexisNexis in 2010 (first edition) and 2015 (second edition). In 2018. a volume edited by Prof. Hall titled The Canadian Law of Obligations: Private Law for the 21st Century was published by LexisNexis and was also published in that same year as a special volume of the Supreme Court Law Reports. Prof. Hall has published extensively in the area of tort law, with a focus on nuisance, the principle from Rylands v. Fletcher, theories of systemic liability in tort law, vicarious liability, and public authority liability. Prof. Hall’s work has been cited by Canadian appellate and trial courts and in law reform reports in Canada and Australia. In addition to tort law, Prof. Hall has also published extensively on issues relating to mental capacity in the law. Prof. Hall is a Visiting Professor in the School of Criminology at Simon Fraser University, British Columbia, and was a Visiting Scholar at the Macquarie University Faculty of Law in Sydney, Australia in 2018.
Erik S. Knutsen, B.A. (Hons), J.D., LL.M. is a Professor and Associate Dean (Academic) at the Faculty of Law, Queen’s University. He has also taught in the Queen’s School of Medicine and as a core faculty member in Queens’ interdisciplinary Masters of Science in Healthcare Quality program. Professor Knutsen’s areas of academic interest include tort, insurance, and the civil litigation system. He is a co-author of Stempel & Knutsen on Insurance Coverage, an American insurance law treatise. He is also co-author of a casebook on Canadian civil litigation and one on American insurance law. His work has been cited by Canadian, American and European appellate and trial courts. Professor Knutsen earned his Masters of Law (LL.M.) from Harvard Law School, his Juris Doctor (J.D.) from Osgoode Hall Law School, and his Honours Bachelor of Arts (B.A.(Hons.)) from Lakehead University. Professor Knutsen is a recipient of the Queen’s University-wide Chancellor A. Charles Baillie Teaching Award and has three times earned the faculty teaching award at Queen’s Faculty of Law. He was previously a Visiting Assistant Professor at Florida State University College of Law, where he also earned a teaching award. He has practiced tort and insurance litigation in Thunder Bay at Carrel + Partners LLP, in Toronto at Fasken Martineau LLP, and in New York at Paul, Weiss LLP where he assisted with 9/11 World Trade Center cases. Professor Knutsen regularly consults with lawyers on cases heading to trial or appeal.
Hilary A. N. Young, B.A., M.A., Ph.D., LL.B., LL.M., is an Associate Professor in the University of New Brunswick's Faculty of Law. She obtained her Ph.D. in linguistics from Rice University, an LL.B. from the University of Ottawa Faculty of Common Law and an LL.M. from Harvard Law School. She clerked for Justice Louis LeBel at the Supreme Court of Canada and practiced civil litigation at Cox & Palmer in Halifax before beginning her academic career. Dr. Young’s research and teaching interests include defamation, privacy, tort and health law. She is one of Canada's leading defamation scholars: She has conducted a major empirical study of Canadian defamation law and has published on anti-SLAPP laws, defamatory meaning, corporate and government defamation actions, internet intermediary liability (with Emily Laidlaw) and the responsible communication defence. She is a member of the Advisory Group for the Law Commission of Ontario's Defamation Law in the Internet Age project. She is also an expert advisor on the Uniform Law Conference of Canada's project on torts for the unauthorized distribution of intimate images. Dr. Young also researches and teaches health law, with an emphasis on informed consent and end of life legal issues. Her work has been cited by courts, including the Supreme Court of Canada, and has been funded by granting agencies including the Social Sciences and Humanities Research Council of Canada.

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Until the appearance of the book in 1995 by Gladys Donson and Lawrence F. Athy, The Thomas Flora Family of London, Maryland, and Virginia, very little was known about the family of Thomas Flora of England who was transported over here at the age of 19 as an indentured servant. He does not really make an appearance in Walter Bunderman’s book of 1948, although one of his lines is mistakenly attributed to Englehardt Flori. The genealogy constructed below is that of Gladys Donson, who admits that some of her attributes are speculative. Many of the probable children of Thomas Flora listed below do appear in the land records of Maryland and Virginia. One of Thomas’ sons, Jacob, appears to dovetail somewhat with Jacob Flory, probable son of Joseph Flory, immigrant father of the C-Line. Donson does not claim that the two Jacobs are necessarily the same person but did indicate in a telephone conversation that the possibility exists that there might be some confusion over the two. This listing below incorporates her research, and we are grateful to have her permission to use it. In addition, there are two excellent articles by Tim Flora, one on the ancestry of Jacob Flora, whose line was mistakenly attributed to Englehardt Flori in Walter Bunderman’s book, and the other on Thomas Flora. The records of Old Bailey, where Thomas was imprisoned before he was transported over here are now on-line. The following is a record of the original text along with a transcription. I am extremely grateful to Carol Carman for providing me with this material.
Thomas Flory, of St. Michael at Quern, was indicted for privately stealing a Silk Hankerchief value 2 s. from the Person of Isaac Tilliard on the 26th of September last. The Prosecutor deposed, that as he was going along Cheapside, just by the Conduit, the Prisoner and another jostled him, and he lost his Handkerchief. Mr. Holland deposed, that as he was going through Cheapside between 3 and 4 in the Afternoon aforesaid, he stopt to buy some Fruit, and the Woman told him there were two Pickpockets followed the Prosecutor, whereupon he made haste after them, and saw the Prisoner take the Prosecutor’s Handkerchief out of his Pocket and drop it on the Ground; upon which he took him by the Collar, and acquainted the Prosecutor therewith. The Prisoner in his Defence said, that the Prosecutor’s Handkerchief was half out of his Pocket, and he rushing by, it fell on the Ground. The Jury considering the Matter, found him Guilty to the value of 10 d. Transportation.
1. THOMAS1 FLORA was born December 1702, and died Aft. 1760. He married ?.
Thomas Flora was the son of James and Penelope Davis Flora; also listed as FLURRY, FLORIE, FLOREY, FLORRY, FLOWRE, and FLORA; christened St. Sepulchre, Newgate, in London on December 6, 1702. He was indentured for five years to be transported to Maryland by an agent, Captain John Larkin, witnessed by his mother, Penelope Flora, St. Giles Cripplegate, London, 1 February 1719; transported on the ship Gilbert by Captain Darby Lux, October 1720, and landed at Annapolis, Maryland, May 1721. His wife’s name is unknown. Once having served out his indenture, he moved several times including to Anne Arundel Co., Maryland, Orange County, Virginia, and Washington County, Maryland. His probable children lived in the Maryland and Virginia region. Since so little was known about Thomas until recently, some of his descendants may have been attributed in the past to other lines.
1.1. JAMES2 FLORA, b. 1725-1730. Owned land in Frederick County, Virginia, 1750. Took Oath of Allegiance, Washington County, Maryland, 1778. Moved to Washington Co., VA, by 1782. n.k.o.
1.3. WILLIAM FLORA, b. Abt. 1730. Volunteered to fight the Indians, Capt. William McClellan’s Company, Colonel Bouquet’s Ohio Expedition, Frederick Co., MD, 1764. Enlisted in Lieutenant Colonel James Innis’ Company of the 15th Virginia Regiment, Continental Line, 22 November 1776, discharged 22 November 1779; appears Tax Lists, Hampshire Co., Va. 1782 and 1784; granted 200 acres of land, Hampshire Co., Va., 1804. He had five children.
1.4. ISSAC FLORA, b. Abt. 1730. Volunteered to fight the Indians, Captain William McClellan’s Company, Colonel Bouquet’s Ohio Expedition, Frederick Co., MD, 1764. n.k.o.
1.5. JOHN FLORA, b. 1730-1740; d. February 1810, Washington County, MD.
1.6. JACOB FLORA. He received a Maryland Bounty Grant for 100 acres for service in the Revolution, 24 December 1791; He witnessed a land sale, Hampshire Co., Va., 13 April 1795. He may have moved to and was taxed in Lincoln Co., Kentucky, 2 June 1795.
1.7. ALBRIGHT FLORA, b. 1750-1755; d. 1820-1830, Adams County, OH. Several people have asked about Albright. To help them in their researches, we are including a genealogical listing of his descendants compiled by Dawn Florea. Click on Albright.
1.8. THOMAS FLORA, b. 1735-1736; d. Abt. 1811, Hampshire County, VA.
1.2. ROBERT2 FLORA (THOMAS1) was born Abt. 1730, and died Abt. 1802 probably in Kentucky. He married CHARITY ?. He bought “Flora’s Choice” from /1.8/ Thomas Flora, Jr., Frederick Co., MD 1773; He took the Oath of Allegiance, Washington Co., MD 1778. While he was still living in Pennsylvania but on his way to Kentucky, he sold land in Washington Co., Maryland in 1787. He then owned land in Mason County, Kentucky, 1789-1802. He probably died in Mason County around 1802. Some of the children below may actually be his grandchildren.
1.2.1. ROBERT3 FLORA, b. Abt. 1760. d. by 1814.
1.2.2. JAMES FLORA. He married Mary ? and owned land in Mason Co., KY 1791-1796. n.k.o.
1.2.4. THOMAS FLORA. He was killed by Indians at Flora’s Station, Kentucky.
1.2.5. JOHN FLORA. Recorded in Mason Co., Kentucky 1790-1800. Perhaps he was the son of /1.7/.
1.2.6. MARY FLORA. She married William Ruddle of Bourbon County, Kentucky on September 25, 1878.
1.5. JOHN2 FLORA (THOMAS1) was born 1730-1740, and died February 1810 in Washington County, MD. died March 1810 in Washington Co, MD. He married ANNA MARIE SEGESTERIN December 26, 1769 in First German Reform Church, Baltimore, Baltimore Co, MD.
1.5.1. JACOB3 FLORA. For an article on the scholarship surrounding Jacob, click on Jacob Flora.
1.5.2. GEORGE FLORA, d. about 1808.
1.5.3. MARY FLORA. She married Peter McKiernan in Washington County, MD on June 24, 1803. n.k.o.
1.5.4. CATHERINE FLORA. She married ? ________ Hutcheson. n.k.o.
1.5.6. ELIZABETH. She married John McKain, in Washington County, MD on December 6, 1806.
1.7. ALBRIGHT2 FLORA (THOMAS1) , possible son of Thomas Flora, was born 1750-1755, and died 1820-1830 in Adams County, OH. He married RUTH ? before 1790. He died in Adams Co., Ohio 1820-1830. His name appears on the census of Frederick County, MD in 1792. He sold his land in Frederick County, Maryland in 1795, and next appears on the tax records of Mason Co., KY 1800. He appears on the tax list of Adams Co., OH 1810. For a listing of his descendants, who are not represented in the chart below, click on Albright.
1.7.1. JOHN3 FLORA, b. Abt. 1776.
1.7.2. NANCY FLORA, b. Abt. 1778. She married James Davis in Mason County, KY on April 18, 1799. n.k.o.
1.7.3. ELIZABETH FLORA, b. 1780; d. 1857.
1.7.4. REBECCA FLORA, b. Abt. 1781; d. 1862.
1.7.5. MARY FLORA, b. 1784; d. 1865.
1.7.6. JOSHUA FLORA, b. 1787; d. 1867.
1.7.7. ISAAC FLORA, b. 1789; d. 1854.
1.7.8. CHARITY FLORA, b. 1791; d. 1849.
1.7.9. RUTH FLORA, b. 1794.
1.8. THOMAS2 FLORA (THOMAS1) was born 1735-1736, and died Abt. 1811 in Hampshire County, VA. He married PRUDENCE ?. Thomas patented 50 acres called “Flora’s Choice,” in Frederick County, MD on Feb. 2, 1761. He then patented 40 acres called “Better Than Mount Misery,” in Frederick County, MD in 1770. He sold this Frederick County land in 1773, but then appears on the tax records of Hampshire Co., VA in 1782. He acquired additional land in this county, primarily 37 1/2 acres in 1795 and 91 acres in 1800. His name appears on the census of Hampshire County in 1800. He lived at “Flora’s Mills” on the Potomac River near the present day town of Paw Paw.
1.8.3. RUTH FLORA, b. 1760-1770; d. 1840-50. Ruth married PHILIP HARTLEY.
1.8.4. DEBORAH FLORA, b. 1769; d. 1849. DEBORAH married Thomas Tarvin.
1.8.6. SARAH FLORA, b. 1770-1780; d. by 1850. SARAH married Sylvester Warfield.
1.8.7. MARGARET, b. Abt. 1778; d. by 1850. MARGARET married BASIL ATHY.
1.8.9. ANN FLORA, b. 1775-1780; married Jacob Smith (b. VA, 1775-78; d. VA after 1850); d. Morgan Co., VA by 1850 n.k.o.
1.8.10. ARCHIBALD FLORA, b. 1780-1790; d. ca. 1845. ARCHIBALD married Barbara Hardy.
1.8.1l. ABSALOM FLORA, b. 1780-1790; d. 1843.
The following continuation of the A-line was contributed by Tim Flora. The first three generations are repeated from Gladys Donson’s list without notes in order to ensure continuity of Tim’s numbering system.
1. JAMES1 FLORA was born Abt. 1659 in London, England. He married PENELOPE DAVIS April 06, 1698.
2. i. THOMAS2 FLORA, b. December 06, 1702, London, England; d. Abt. 1760, Washington Co, MD.
3. ii. JAMES FLORA, JR., b. July 06, 1701.
iii. SUSAN FLORA, b. September 18, 1704.
2. THOMAS2 FLORA (JAMES1) was born December 06, 1702 in London, England, and died Abt. 1760 in Washington Co, MD.
i. JAMES3 FLORA, b. Abt. 1728, Anne Arundel, MD.
4. ii. ROBERT FLORA, b. Abt. 1730, Anne Arundel, MD; d. Abt. 1802, Mason County, KY.
iii. WILLIAM FLORA, b. Abt. 1732.
iv. ISAAC FLORA, b. Abt. 1734.
5. v. JOHN FLORA, b. Abt. 1735, Anne Arundel, MD; d. March 1810, Washington Co, MD.
6. vi. THOMAS FLORA, JR., b. Abt. 1736; d. Abt. 1811, Hampshire County, VA.
vii. JACOB FLORA, b. Abt. 1738.
viii. ALBRIGHT FLORA, b. Abt. 1750.
3. JAMES2 FLORA, JR. (JAMES1) was born July 06, 1701. He married ELIZABETH MARRIOTT.
i. ANN3 FLORA, b. 1731.
4. ROBERT3 FLORA (THOMAS2, JAMES1) was born Abt. 1730 in Anne Arundel, MD, and died Abt. 1802 in Mason County, KY. He married CHARITY.
5. JOHN3 FLORA (THOMAS2, JAMES1) was born Abt. 1735 in Anne Arundel, MD, and died March 1810 in Washington Co, MD. He married ANNA MARIE SEGESTERIN December 26, 1769 in First German Reform Church, Baltimore, Baltimore Co, MD.
7. i. JACOB4 FLORA, b. February 13, 1771, MD; d. October 26, 1843, Clear Creek Twp, Huntington Co., IN.
ii. CATHERINE FLORA, m. ANDREW HUTCHESON.
8. iii. GEORGE FLORA, d. Abt. 1808.
iv. MARY FLORA, m. PATRICK MCKEIRNAN, June 24, 1803, Washington Co, MD.
v. ELIZABETH FLORA, m. JOHN MCKAIN, December 06, 1806, Washington Co, MD.
vi. NANCY FLORA, b. October 1779, Frederick Co, MD; d. May 30, 1867, Cavetown, Washington Co, MD.
9. vii. JOHN FLORA, b. Abt. 1783, Frederick Co, MD.
6. THOMAS3 FLORA, JR. (THOMAS2, JAMES1) was born Abt. 1736, and died Abt. 1811 in Hampshire County, VA. He married PRUDENCE.
i. ABIJAH4 FLORA, m. MARGARET.
iii. ANN FLORA, m. JACOB SMITH.
iv. ARCHIBALD FLORA, m. BARBARA HARDY.
v. DEBORAH FLORA, m. THOMAS TARVIN.
vii. JOSEPH FLORA, m. RACHAEL.
viii. MARGARET FLORA, m. BASIL ATHY.
x. RUTH FLORA, m. PHILIP HARTLEY.
xi. SARAH FLORA, m. SYLVESTER WARFIELD.
7. JACOB4 FLORA (JOHN3, THOMAS2, JAMES1) was born February 13, 1771 in MD, and died October 26, 1843 in Clear Creek Twp, Huntington Co., IN. He married MAGDELENE BACHTEL 1801 in MD, daughter of JOHN BACHTEL and CATHERINE LETCH. She was born January 03, 1777 in Johnstown, Cambria Co., PA, and died September 24, 1837 in Pike Twp., Stark Co., OH.
11. i. CATHARINE5 FLORA, b. November 08, 1801, MD; d. May 30, 1882, Magnolia, Stark Co, OH.
12. ii. DAVID FLORA, b. April 26, 1804, MD; d. August 30, 1876, Clear Creek Twp., Huntington Co., IN.
13. iii. DANIEL FLORA, b. November 22, 1805, Hagerstown, Washington Co, MD; d. September 14, 1854, Clear Creek Twp., Huntington Co., IN.
14. iv. GEORGE FLORA, b. December 01, 1806, MD; d. December 24, 1870, Pike Twp., Stark Co., OH.
15. v. BARBARA FLORA, b. January 20, 1808, Woodbury Twp, Bedford Co, PA; d. October 15, 1862, Clear Creek Twp, Huntington Co., IN.
16. vi. MARY FLORA, b. March 24, 1814, Woodbury Twp, Bedford Co, PA; d. March 13, 1889, Clear Creek Twp., Huntington Co., IN.
8. GEORGE4 FLORA (JOHN3, THOMAS2, JAMES1) died Abt. 1808. He married EVA ENDERSON March 1798.
9. JOHN4 FLORA (JOHN3, THOMAS2, JAMES1) was born Abt. 1783 in Frederick Co, MD. He married SUSANNA E. HUNT September 05, 1807 in Washington Co, MD.
i. ELIZABETH5 FLORA, b. 1812.
ii. POLLY FLORA, b. 1814.
iii. REBECCA FLORA, b. January 11, 1821.
17. iv. JACOB W. FLORA, b. November 15, 1822, Fort Loudon, Franklin Co, PA; d. April 1916, Marshall Co, IA.
v. CATHERINE FLORA, b. 1822; d. 1861; m. WILLIAM MEALMAN.
18. vi. JOHN WESLEY FLORA, b. August 01, 1827; d. May 07, 1915, Chambersburg, Franklin Co, PA.
10. RACHAEL4 FLORA (THOMAS3, THOMAS2, JAMES1) She married JOHN KESLER.
11. CATHARINE5 FLORA (JACOB4, JOHN3, THOMAS2, JAMES1, JOHNA, THOMASB, EDWARDC) was born November 08, 1801 in MD, and died May 30, 1882 in Magnolia, Stark Co, OH. She married JOHN BURNHEIMER October 12, 1823 in Stark Co, OH. He was born January 19, 1799 in PA, and died September 03, 1869 in Magnolia, Stark Co, OH.
i. ELIZABETH6 BURNHEIMER, b. 1825.
ii. HARRIET BURNHEIMER, b. 1825.
iii. MARY BURNHEIMER, b. 1827.
iv. REBECCA BURNHEIMER, b. 1834.
v. MARY BURNHEIMER, b. 1836.
vi. ISAAC BURNHEIMER, b. 1841.
19. vii. CATHERINE BURNHEIMER, b. 1843, Pike Twp, Stark Co, OH.
viii. J. J. BURNHEIMER, b. 1845.
12. DAVID5 FLORA (JACOB4, JOHN3, THOMAS2, JAMES1) was born April 26, 1804 in MD, and died August 30, 1876 in Clear Creek Twp., Huntington Co., IN. He married LYDIA BOWMAN September 08, 1844 in Pike Twp., Stark Co., OH, daughter of JACOB BOWMAN and HANNAH KLINGER. She was born March 12, 1814 in Northumberland Co., PA, and died 1894 in Clear Creek Twp., Huntington Co., IN.
20. i. ISAAC6 FLORA, b. July 1849, Huntington Co., IN.
ii. ALONSO FLORA, b. November 22, 1853, Clear Creek Twp, Huntington Co., IN; d. March 14, 1880, Clear Creek Twp, Huntington Co., IN.
13. DANIEL5 FLORA (JACOB4, JOHN3, THOMAS2, JAMES1) was born November 22, 1805 in Hagerstown, Washington Co, MD, and died September 14, 1854 in Clear Creek Twp., Huntington Co., IN. He married MARY CABLE October 24, 1833 in Stark Co, OH, daughter of JONATHAN CABLE and BARBARA SPECHT. She was born February 19, 1807 in Brothers Valley Twp, Somerset Co, PA, and died October 31, 1871 in Clear Creek Twp., Huntington Co., IN.
21. i. JONATHAN6 FLORA, b. July 15, 1828, Pike Twp., Stark Co., OH; d. June 29, 1893, Huntington Co., IN.
22. ii. WILLIAM FLORA, b. September 1830, Pike Twp., Stark Co., OH.
23. iii. HARMON FLORA, b. February 17, 1832, Pike Twp., Stark Co., OH; d. March 21, 1861, Huntington Co., IN.
24. iv. DAVID FLORA, b. May 25, 1834, Pike Twp., Stark Co., OH.
25. v. JOSEPH FLORA, b. June 12, 1836, Pike Twp., Stark Co., OH.
26. vi. BENJAMIN FLORA, b. February 28, 1838, Pike Twp., Stark Co., OH; d. January 10, 1901, Huntington Co., IN.
vii. SAMUEL C. FLORA, b. April 05, 1841, Pike Twp., Stark Co., OH; d. September 30, 1861, Huntington Co., IN.
27. viii. SILAS FLORA, b. August 09, 1842, Pike Twp., Stark Co., OH; d. 1924, Huntington Co., IN.
28. ix. ELIZABETH ANN FLORA, b. 1847, Pike Twp., Stark Co., OH.
14. GEORGE5 FLORA (JACOB4, JOHN3, THOMAS2, JAMES1) was born December 01, 1806 in MD, and died December 24, 1870 in Pike Twp., Stark Co., OH. He married HANNAH BOWMAN December 24, 1833 in Pike Twp., Stark Co., OH, daughter of JACOB BOWMAN and HANNAH KLINGER. She was born December 19, 1816 in Northumberland Co., PA, and died December 31, 1862 in Pike Twp., Stark Co., OH.
i. FRANKLIN6 FLORA, b. 1835.
29. ii. JACOB FLORA, b. December 03, 1836.
30. iii. HARRIET FLORA, b. 1839.
31. iv. HARRISON FLORA, b. June 30, 1841, Pike Twp., Stark Co., OH; d. February 15, 1903, Flora Twp., Dickinson Co., KS.
32. v. EMMA FLORA, b. 1845, Pike Twp., Stark Co., OH.
15. BARBARA5 FLORA (JACOB4, JOHN3, THOMAS2, JAMES1) was born January 20, 1808 in Woodbury Twp, Bedford Co, PA, and died October 15, 1862 in Clear Creek Twp, Huntington Co., IN. She married HARMON SMITH January 17, 1832 in Pike Twp., Stark Co., OH. He was born September 28, 1809 in PA, and died September 23, 1870 in Clear Creek Twp, Huntington Co., IN.
i. MARGARET6 SMITH, b. 1833, Pike Twp., Stark Co., OH.
33. ii. JOSEPHINE SMITH, b. 1838, Pike Twp., Stark Co., OH.
34. iii. OBEDIAH SMITH, b. 1839, Pike Twp., Stark Co., OH.
iv. MELISSA SMITH, b. 1842, Pike Twp., Stark Co., OH.
v. JOANNAH SMITH, b. 1845, Huntington Co., IN.
vi. FLORA A. SMITH, b. 1847, Huntington Co., IN.
16. MARY5 FLORA (JACOB4, JOHN3, THOMAS2, JAMES1) was born March 24, 1814 in Woodbury Twp, Bedford Co, PA, and died March 13, 1889 in Clear Creek Twp., Huntington Co., IN. She married CORNELIUS HENLINE December 23, 1841 in Pike Twp., Stark Co., OH, son of MARTIN HENLINE and ELIZABETH HEMINGER. He was born May 06, 1815 in Pike Twp., Stark Co., OH, and died May 24, 1889 in Clear Creek Twp., Huntington Co., IN.
i. SEVILLAH6 HENLINE, b. October 01, 1842, Pike Twp., Stark Co., OH; d. September 21, 1921; m. DENNIS SUMMERS, June 26, 1864, Huntington Co., IN.
ii. URIAS HENLINE, b. August 10, 1844, Clear Creek Twp., Huntington Co., IN; d. March 14, 1845, Clear Creek Twp., Huntington Co., IN.
iii. WASHINGTON HENLINE, b. January 22, 1846, Clear Creek Twp., Huntington Co., IN; d. October 07, 1917, Warren Twp., Huntington Co., IN; m. SARAH D.; b. 1852; d. 1930, Huntington Co., IN.
35. iv. FRANKLIN HENLINE, b. February 13, 1848, Clear Creek Twp., Huntington Co., IN; d. 1930, Huntington Co., IN.
v. EMMA HENLINE, b. August 02, 1849, Clear Creek Twp., Huntington Co., IN; m. (1) SIMON S. BONEBRAKE, October 12, 1882, Clear Creek Twp., Huntington Co., IN; m. (2) MR EMMA HENLINE, November 01, 1917, Huntington Co., IN.
vi. KETURAH HENLINE, b. November 12, 1851, Clear Creek Twp., Huntington Co., IN; m. REUBEN BONEBRAKE, May 21, 1874, Huntington Co., IN.
vii. REBECCA HENLINE, b. January 14, 1854, Clear Creek Twp., Huntington Co., IN; d. April 08, 1862, Clear Creek Twp., Huntington Co., IN.
viii. MARTIN HENLINE, b. July 06, 1856, Clear Creek Twp., Huntington Co., IN.
ix. FLORA ELLEN HENLINE, b. April 15, 1860, Clear Creek Twp., Huntington Co., IN.
x. GILBERT HENLINE, b. September 28, 1862, Clear Creek Twp., Huntington Co., IN.
17. JACOB W.5 FLORA (JOHN4, JOHN3, THOMAS2, JAMES1) was born November 15, 1822 in Fort Loudon, Franklin Co, PA, and died April 1916 in Marshall Co, IA. He married CATHERINE KING MILLS. She was born November 02, 1824, and died November 11, 1888.
i. NANCY6 FLORA, b. February 27, 1842.
36. ii. SUSAN FLORA, b. February 27, 1842; d. December 31, 1922.
37. iii. CATHERINE JANE FLORA, b. August 23, 1844.
38. iv. DAVID MILLS FLORA, b. January 28, 1847, Fort Loudon, Franklin Co, PA; d. November 25, 1926, Holden, MO.
v. JOHN BONEWELL FLORA, b. September 10, 1849; d. Rhodes, IA.
39. vi. JACOB TAWNEY FLORA, b. May 24, 1852.
vii. MARGARET ELIZABETH FLORA, b. December 24, 1854; d. 1856.
viii. MARY SARAH FLORA, b. May 20, 1857.
ix. LEVI SYLVESTER FLORA, b. November 25, 1859; m. ALICE WALTEMEYER.
40. x. ELIZABETH ARINDA FLORA, b. December 15, 1862.
xi. GRANT FLORA, b. August 05, 1865; m. EDNA WELTON.
xii. DORA BYRDE FLORA, b. February 08, 1868; m. BURRIT GRILLEY.
41. xiii. CHARLES WESLEY FLORA, b. August 17, 1870.
18. JOHN WESLEY5 FLORA (JOHN4, JOHN3, THOMAS2, JAMES1) was born August 01, 1827, and died May 07, 1915 in Chambersburg, Franklin Co, PA. He married ELIZABETH ANN JOHNS April 11, 1850. She was born August 29, 1830, and died December 14, 1908 in Chambersburg, Franklin Co, PA.
i. DALE ALEXANDER6 FLORA, b. June 23, 1851; d. September 16, 1928.
ii. EMMA ELIZABETH FLORA, b. May 04, 1855; d. August 1931; m. DAVID GEIMAN.
iii. ALICE MAY FLORA, b. September 17, 1858; d. November 12, 1899; m. LAUDENSLAKER.
42. iv. MARY CAROLINE FLORA, b. December 18, 1860; d. January 11, 1945.
43. v. GEORGE B. MCCLELLAN FLORA, b. May 17, 1863.
vi. LAURA REBECCA FLORA, b. November 17, 1865; d. August 02, 1920; m. WEISGARBER.
44. vii. JOHN WESLEY JR. FLORA, b. April 18, 1868; d. January 16, 1944.
45. viii. CATHERINE MAUD FLORA, b. September 12, 1870.
ix. DAISEY LODEL FLORA, b. September 29, 1873; m. F. F. SNYDER, San Bernadino, CA.
19. CATHERINE6 BURNHEIMER (CATHARINE5 FLORA, JACOB4, JOHN3, THOMAS2, JAMES1) was born 1843 in Pike Twp, Stark Co, OH. She married ISAAC O. BOWMAN, son of HENRY BOWMAN and NANCY LEITER. He was born 1839 in Pike Twp, Stark Co, OH.
46. iv. HENRY BENTON BOWMAN.
20. ISAAC6 FLORA (DAVID5, JACOB4, JOHN3, THOMAS2, JAMES1) was born July 1849 in Huntington Co., IN. He married MARIA LOUISE HERNDON July 09, 1871 in Huntington Co., IN. She was born in KY.
i. MINNIE E.7 FLORA, b. 1872, Huntington Co., IN; m. JOHN W. MAUGER, December 13, 1896, Huntington Co., IN.
ii. DOLPHUS FLORA, b. 1875; m. ALICE MULVINE, August 16, 1899.
iii. MAUD FLORA, b. 1875; m. JOHN CARLL.
iv. ELMIRA FLORA, b. 1876.
v. WILMER FLORA, b. 1878.
21. JONATHAN6 FLORA (DANIEL5, JACOB4, JOHN3, THOMAS2, JAMES1) was born July 15, 1828 in Pike Twp., Stark Co., OH, and died June 29, 1893 in Huntington Co., IN. He married LYDIA REAM March 1853 in Huntington Co., IN. She was born October 15, 1828 in Stark Co, OH, and died March 21, 1897 in Huntington Co., IN.
47. i. CALVIN G.7 FLORA, b. January 22, 1854, Clear Creek Twp., Huntington Co., IN; d. August 07, 1888, Huntington Co., IN.
48. ii. SAMANTHA A. FLORA, b. April 08, 1856, Clear Creek Twp., Huntington Co., IN; d. November 01, 1918, Malden, Dunklin Co., MO.
49. iii. MARION E. FLORA, b. January 04, 1858, Clear Creek Twp., Huntington Co., IN.
22. WILLIAM6 FLORA (DANIEL5, JACOB4, JOHN3, THOMAS2, JAMES1) was born September 1830 in Pike Twp., Stark Co., OH. He married MARY RAICHART September 03, 1854 in Huntington Co., IN. She was born September 1838 in OH.
50. v. URIAH FLORA, b. November 1855, Clear Creek Twp., Huntington Co., IN.
51. vi. MELINDA FLORA, b. 1857, Clear Creek Twp., Huntington Co., IN.
vii. SARAH JANE FLORA, b. 1859, Clear Creek Twp., Huntington Co., IN.
viii. SIMON FLORA, b. March 15, 1860, Clear Creek Twp., Huntington Co., IN; d. September 30, 1860, Clear Creek Twp, Huntington Co., IN.
ix. ALICE FLORA, b. September 13, 1862, Clear Creek Twp, Huntington Co., IN; d. September 10, 1863, Clear Creek Twp, Huntington Co., IN.
x. LYDIA ANN FLORA, b. 1866.
52. xi. JOHN FLORA, b. April 1875, Clear Creek Twp, Huntington Co, IN.
53. xii. BERTHA FLORA, b. 1879, Casco Twp, Allegan Co, MI.
54. xiii. MARY ELIZABETH FLORA, b. November 1870, Huntington Co., IN; d. 1960, Kalamazoo, MI.
23. HARMON6 FLORA (DANIEL5, JACOB4, JOHN3, THOMAS2, JAMES1) was born February 17, 1832 in Pike Twp., Stark Co., OH, and died March 21, 1861 in Huntington Co., IN. He married ELIZABETH SUSSLER March 08, 1853 in Huntington Co., IN. She was born 1833 in OH.
i. SARAH A.7 FLORA, b. 1854, Clear Creek Twp., Huntington Co., IN; m. JOHN EDWARDS, March 07, 1871, Huntington Co., IN.
ii. BARBARA ELLA FLORA, b. 1857, Clear Creek Twp., Huntington Co., IN.
iii. EDWARD OLONZO FLORA, b. 1859, Clear Creek Twp., Huntington Co., IN; m. CAROLINE C. KLINE, June 14, 1881, Huntington Co., IN.
iv. JOANNA MAY FLORA, b. 1861, Huntington Co., IN; m. JOSEPH F. AULT, March 21, 1884, Huntington Co., IN.
24. DAVID6 FLORA (DANIEL5, JACOB4, JOHN3, THOMAS2, JAMES1) was born May 25, 1834 in Pike Twp., Stark Co., OH. He married ELIZABETH RAICHART January 17, 1857 in Huntington Co., IN. She was born January 1840 in OH.
55. ii. GRAYSON FLORA, b. 1858, Clear Creek Twp., Huntington Co., IN.
56. iii. PIERSON FLORA, b. May 1860, Clear Creek Twp., Huntington Co., IN.
57. iv. TIMOTHY TITUS FLORA, b. September 1861.
58. v. GEORGE FLORA, b. September 1863.
vi. EDWARD FLORA, b. September 07, 1865, Huntington Co., IN; d. January 01, 1866, Huntington Co., IN.
vii. ELLEN FLORA, b. 1866.
viii. SHIRLEY FLORA, b. 1870.
ix. MILO FLORA, b. June 1873, MI; m. LIBBY MANX; b. November 1874, IN.
x. FRANKLIN FLORA, b. 1877.
59. xi. MINNIE FLORA, b. January 1879.
xii. ZEBULON FLORA, b. September 1881; m. EDNA KEENEY.
25. JOSEPH6 FLORA (DANIEL5, JACOB4, JOHN3, THOMAS2, JAMES1) was born June 12, 1836 in Pike Twp., Stark Co., OH. He married LETHA ANN BURNS January 08, 1860 in Huntington Co., IN. She was born 1840 in PA.
60. i. ERASTUS7 FLORA, b. 1861; d. 1916.
ii. MARY MARGARET FLORA, b. 1863; d. 1863.
61. iii. MARTHA BELL FLORA, b. 1864.
62. iv. IDA MAY FLORA, b. 1866.
v. ANNA D. FLORA, b. January 09, 1869, Huntington Co., IN; d. April 01, 1872, Huntington Co., IN.
63. vi. LAURY ELMEDA FLORA, b. 1872.
vii. CORA RANDELL FLORA, b. 1874; m. MR CORA RANDALL FLORA, May 29, 1918, Huntington Co., IN.
26. BENJAMIN6 FLORA (DANIEL5, JACOB4, JOHN3, THOMAS2, JAMES1) was born February 28, 1838 in Pike Twp., Stark Co., OH, and died January 10, 1901 in Huntington Co., IN. He married NANCY BROOKS May 15, 1860 in Huntington Co., IN. She was born 1842, and died April 07, 1919 in Huntington Co., IN.
i. THEADORE7 FLORA, b. November 17, 1861, Huntington Co., IN; d. November 22, 1866, Huntington Co., IN.
ii. ISADORA FLORA, b. 1867, Huntington Co., IN; d. 1910, Huntington Co., IN; m. (1) EDWARD VERGON, February 22, 1885, Huntington Co., IN; m. (2) JOHN W. SMITH, September 22, 1892, Huntington Co., IN.
27. SILAS6 FLORA (DANIEL5, JACOB4, JOHN3, THOMAS2, JAMES1) was born August 09, 1842 in Pike Twp., Stark Co., OH, and died 1924 in Huntington Co., IN. He married MARY ANN KAYLOR August 09, 1863 in Huntington Co., IN. She was born May 1844 in IN, and died 1921 in Huntington Co., IN.
ii. ANNA B. FLORA, b. January 02, 1865, Huntington Co., IN; d. April 02, 1865, Huntington Co., IN.
iii. ASA M. FLORA, b. September 1866; m. IDA C. KLINE, June 22, 1893, Huntington Co., IN; b. March 1874, IN.
iv. FRANKLIN S. FLORA, b. 1869.
v. ULYSSUS GRANT FLORA, b. February 1871; m. MRS ULYSSUS GRANT FLORA, December 09, 1906, Huntington Co., IN.
vi. EDITH FLORA, b. June 1873.
vii. VERNA MARJORIE FLORA, b. 1876, Huntington Co., IN; m. MR VERNA MARJORIE FLORA, March 30, 1902, Huntington Co., IN.
viii. MAMIE DELL FLORA, b. March 1881; m. MR MAMIE DELL FLORA, June 25, 1919, Huntington Co., IN.
28. ELIZABETH ANN6 FLORA (DANIEL5, JACOB4, JOHN3, THOMAS2, JAMES1) was born 1847 in Pike Twp., Stark Co., OH. She married HENRY BURNS.
29. JACOB6 FLORA (GEORGE5, JACOB4, JOHN3, THOMAS2, JAMES1) was born December 03, 1836. He married LUCINDA MCFARLAND June 13, 1865 in Pike Twp., Stark Co., OH.
64. i. SARAH H.7 FLORA.
65. ii. EMMA N. FLORA.
30. HARRIET6 FLORA (GEORGE5, JACOB4, JOHN3, THOMAS2, JAMES1) was born 1839. She married JOHN F. FARBER April 15, 1860, son of JAMES FARBER and CAROLINE WEAVER. He was born November 22, 1834 in Stark Co, OH.
66. i. EMMA7 FARBER, b. 1861.
67. ii. FRANKLIN FARBER, b. 1863.
68. iii. PHILIP FARBER, b. July 1869.
31. HARRISON6 FLORA (GEORGE5, JACOB4, JOHN3, THOMAS2, JAMES1) was born June 30, 1841 in Pike Twp., Stark Co., OH, and died February 15, 1903 in Flora Twp., Dickinson Co., KS. He married (1) MARY ELECIA SINCLAIR June 20, 1867 in Sandyville, Tuscarawas Co, OH, daughter of JOHN SINCLAIR and SARAH COMBS. She was born August 15, 1848 in Brown Twp., Carroll Co., OH, and died March 22, 1888 in Flora Twp., Dickinson Co., KS. He married (2) CLARA J. HOWENSTINE Abt. 1894. She was born January 1855 in OH.
i. WILBUR BANCROFT7 FLORA, b. 1868, Pike Twp., Stark Co., OH; d. 1943; m. MARY HUNTER; b. 1884; d. 1965.
ii. HARLEY COIT FLORA, b. August 07, 1869, Pike Twp., Stark Co., OH; d. April 16, 1950, Emporia, Lyon Co, KS.
iii. CHARLES CULLEN FLORA, b. 1871, Pike Twp., Stark Co., OH; d. March 04, 1942, Manchester, Dickinson Co, KS.
69. iv. CARLOTTA HOPE FLORA, b. June 28, 1873, Flora Twp., Dickinson Co., KS; d. April 26, 1963, Emporia, Lyon Co, KS.
v. HERMINE S. FLORA, b. January 15, 1875, Flora Twp., Dickinson Co., KS; d. July 08, 1886, Flora Twp., Dickinson Co., KS.
vi. FLORA FLORA, b. January 17, 1877, Flora Twp., Dickinson Co., KS; d. March 07, 1877, Flora Twp., Dickinson Co., KS.
70. vii. FLORENCE FLORA FLORA, b. January 18, 1877, Flora Twp., Dickinson Co., KS; d. 1945, OR.
71. viii. HARRISON FLORA, b. December 02, 1878, Flora Twp., Dickinson Co., KS; d. June 01, 1939, Parsons, Labette Co., KS.
ix. EARL FLORA, b. October 03, 1880, Flora Twp., Dickinson Co., KS; d. July 10, 1886, Flora Twp., Dickinson Co., KS.
72. x. FRANK DALE FLORA, b. December 11, 1882, Flora Twp., Dickinson Co., KS; d. March 01, 1951, Saint Joseph, Buchanan Co. MO.
73. xi. ESTHER MARGARET7 FLORA, b. April 1896, Flora Twp., Dickinson Co., KS; d. September 28, 1974, Concordia, Lafayette Co, MO.
32. EMMA6 FLORA (GEORGE5, JACOB4, JOHN3, THOMAS2, JAMES1) was born 1845 in Pike Twp., Stark Co., OH. She married GEORGE BOWYER. He was born 1844 in Canada, and died 1925 in Flora Twp, Dickinson Co, KS.
i. BERTHA7 BOWYER, b. 1877, Flora Twp., Dickinson Co., KS.
33. JOSEPHINE6 SMITH (BARBARA5 FLORA, JACOB4, JOHN3, THOMAS2, JAMES1) was born 1838 in Pike Twp., Stark Co., OH. She married JOHN BONEWITZ.
34. OBEDIAH6 SMITH (BARBARA5 FLORA, JACOB4, JOHN3, THOMAS2, JAMES1) was born 1839 in Pike Twp., Stark Co., OH. He married MARGARET J.. She was born 1846 in IN.
i. IDA BELL7 SMITH, b. 1867.
ii. MILO A. SMITH, b. 1868.
iii. HOWARD G. SMITH, b. 1872.
iv. BERTHA E. SMITH, b. 1876.
35. FRANKLIN6 HENLINE (MARY5 FLORA, JACOB4, JOHN3, THOMAS2, JAMES1) was born February 13, 1848 in Clear Creek Twp., Huntington Co., IN, and died 1930 in Huntington Co., IN. He married SUSANNA C. HOCK. She was born 1855 in OH, and died 1911 in Huntington Co., IN.
i. JESSIE M.7 HENLINE, b. 1879; d. Huntington Co., IN; m. C. M.; b. 1893; d. Huntington Co., IN.
36. SUSAN6 FLORA (JACOB W.5, JOHN4, JOHN3, THOMAS2, JAMES1) was born February 27, 1842, and died December 31, 1922. She married JOHN WILLIAM WADE April 10, 1862 in IL. He was born September 06, 1841, and died August 10, 1922.
i. SERENA ARDELLA7 WADE, b. Abt. 1864; d. December 1865.
ii. SARAH CATHERINE WADE, b. June 07, 1865; m. J. W. ANDERSON, July 22, 1889, Long Beach, CA.
75. iii. MARY ELLEN WADE, b. November 10, 1867.
iv. NANCY JUNIATA WADE, b. March 12, 1869; m. NORTON, October 1896.
76. v. LILLIAN BLANCHE WADE, b. August 18, 1872.
vi. LEONA ANNA WADE, b. January 24, 1876.
vii. GRACE ELIZABETH WADE, b. October 08, 1879.
viii. ETHEL W. WADE, b. July 28, 1883.
ix. LLOYD A. WADE, b. November 04, 1885.
37. CATHERINE JANE6 FLORA (JACOB W.5, JOHN4, JOHN3, THOMAS2, JAMES1) was born August 23, 1844. She married CHARLES PRESTON.
38. DAVID MILLS6 FLORA (JACOB W.5, JOHN4, JOHN3, THOMAS2, JAMES1) was born January 28, 1847 in Fort Loudon, Franklin Co, PA, and died November 25, 1926 in Holden, MO. He married NANCY CLARK.
40. ELIZABETH ARINDA6 FLORA (JACOB W.5, JOHN4, JOHN3, THOMAS2, JAMES1) was born December 15, 1862. She married FRANK GOWDY.
41. CHARLES WESLEY6 FLORA (JACOB W.5, JOHN4, JOHN3, THOMAS2, JAMES1) was born August 17, 1870. He married ROSA HALTER.
42. MARY CAROLINE6 FLORA (JOHN WESLEY5, JOHN4, JOHN3, THOMAS2, JAMES1) was born December 18, 1860, and died January 11, 1945. She married W. H. MURPHY August 14, 1884 in Harrisburg, PA.
v. MAUD MURPHY, m. GROFF.
vii. EFFA MURPHY, m. BRANDT.
viii. BLANCHE MURPHY, m. SMITH.
43. GEORGE B. MCCLELLAN6 FLORA (JOHN WESLEY5, JOHN4, JOHN3, THOMAS2, JAMES1) was born May 17, 1863. He married SUSAN BRICKER in Orrstown, PA. She was born December 01, 1863.
i. ANNA7 FLORA, b. September 01, 1888; m. SCHLESSMAN.
ii. LAURA FLORA, b. December 16, 1889; m. KENDALL.
iii. EDITH FLORA, b. September 29, 1891; m. MYERS.
iv. CLARENCE FLORA, b. May 17, 1894.
v. JOHN ALBERT FLORA, b. January 24, 1898; m. HELEN M. STENGER; b. July 14, 1901.
vi. EMMA FLORA, b. February 07, 1900; m. ZIMMERMAN.
77. vii. PAUL FLORA, b. March 08, 1901; d. March 24, 1950.
viii. ESTHER FLORA, b. December 25, 1903; m. SOLLENBERGER.
44. JOHN WESLEY JR.6 FLORA (JOHN WESLEY5, JOHN4, JOHN3, THOMAS2, JAMES1) was born April 18, 1868, and died January 16, 1944. He married (1) CARRIE J. SPAHR. She was born January 22, 1870, and died March 12, 1917. He married (2) MINNIE GABLE. She was born February 08, 1881.
i. HELEN I.7 FLORA, m. ROY F. SHAFFER.
iii. MARY EDNA FLORA, m. CARROLL F. LEITER.
iv. ALBERT FLORA, b. September 17, 1896; d. April 23, 1915.
vii. RAYMOND FLORA, b. 1898; d. 1899.
viii. LORENA FLORA, b. 1904; d. 1906.
45. CATHERINE MAUD6 FLORA (JOHN WESLEY5, JOHN4, JOHN3, THOMAS2, JAMES1) was born September 12, 1870. She married BENJAMIN F. BROWN January 18, 1893 in 938 Wilson Ave., Chambersburg, PA. He was born September 05, 1871, and died March 20, 1941.
78. i. PAUL R.7 BROWN, b. March 04, 1894; d. East View, NY.
79. ii. GLADA BROWN, b. December 05, 1896; d. 1950.
80. iii. VERA JANE BROWN, b. December 05, 1896.
46. HENRY BENTON7 BOWMAN (CATHERINE6 BURNHEIMER, CATHARINE5 FLORA, JACOB4, JOHN3, THOMAS2, JAMES1) He married ORA C. EPPERSON.
47. CALVIN G.7 FLORA (JONATHAN6, DANIEL5, JACOB4, JOHN3, THOMAS2, JAMES1) was born January 22, 1854 in Clear Creek Twp., Huntington Co., IN, and died August 07, 1888 in Huntington Co., IN. He married MAGGIE JANE CALLISON October 23, 1881 in Huntington Co., IN, daughter of ANTHONY CALISON. She was born November 11, 1862, and died January 30, 1885 in Huntington Co., IN.
i. WALLACE HADEN8 FLORA, b. 1882; m. UNA MENTZER, September 26, 1907, Huntington Co., IN.
48. SAMANTHA A.7 FLORA (JONATHAN6, DANIEL5, JACOB4, JOHN3, THOMAS2, JAMES1) was born April 08, 1856 in Clear Creek Twp., Huntington Co., IN, and died November 01, 1918 in Malden, Dunklin Co., MO. She married DANIEL E. METZLER December 10, 1876 in Huntington Co., IN, son of HENRY METZLER and POLLY STUMP. He was born August 25, 1855 in OH, and died July 1920 in Malden, Dunklin Co., MO.
81. i. SYDNEY LYDIA8 METZLER, b. October 19, 1877; d. December 13, 1925, Los Angeles, CA.
ii. ARTHUR JONATHAN HENRY METZLER, b. December 02, 1878; d. February 1879.
iii. BARTON BURDELL METZLER, b. June 23, 1880; d. 1899, Montpelier, IN.
82. iv. BERTHA IDELLA METZLER, b. March 15, 1883.
v. CHESTER LORENDO METZLER, b. December 07, 1885; d. September 1927, Marion, IN.
vi. DE ETTA LAVOLIA METZLER, b. June 15, 1886; d. 1909, Marion, IN.
vii. ALFRED BOSTON METZLER, b. June 02, 1888.
viii. MILTON MORTIMER METZLER, b. April 01, 1890.
ix. ELNORA SAMANTHA METZLER, b. February 28, 1893; d. 1928, Marion, IN.
49. MARION E.7 FLORA (JONATHAN6, DANIEL5, JACOB4, JOHN3, THOMAS2, JAMES1) was born January 04, 1858 in Clear Creek Twp., Huntington Co., IN. He married (1) VIRGINIA PORTER. He married (2) ADDIE I. HELSER March 26, 1885 in Huntington Co., IN, daughter of JOHN HELSER and JULIA DELVIN. She was born April 28, 1864 in Huntington Co., IN, and died May 13, 1937 in Huntington Co., IN.
83. ii. LINDEN L.8 FLORA, b. September 26, 1886, Huntington Co., IN; d. March 15, 1961, Huntington Co., IN.
iii. EFFIE Z. FLORA, b. January 1889.
84. iv. FARREL F. FLORA, b. September 1891, Huntington Co., IN.
50. URIAH7 FLORA (WILLIAM6, DANIEL5, JACOB4, JOHN3, THOMAS2, JAMES1) was born November 1855 in Clear Creek Twp., Huntington Co., IN. He married MARY RHODES. She was born September 1861 in IN.
i. WILLIAM8 FLORA, b. November 1888, Lee Twp, Allegan Co, MI.
51. MELINDA7 FLORA (WILLIAM6, DANIEL5, JACOB4, JOHN3, THOMAS2, JAMES1) was born 1857 in Clear Creek Twp., Huntington Co., IN. She married HENRY MOTTER.
52. JOHN7 FLORA (WILLIAM6, DANIEL5, JACOB4, JOHN3, THOMAS2, JAMES1) was born April 1875 in Clear Creek Twp, Huntington Co, IN. He married MYRTLE DEMING. She was born March 1880 in MI.
i. NEAL J.8 FLORA, b. January 1898, Lee Twp, Allegan Co, MI.
53. BERTHA7 FLORA (WILLIAM6, DANIEL5, JACOB4, JOHN3, THOMAS2, JAMES1) was born 1879 in Casco Twp, Allegan Co, MI. She married ROBERT E ANDERSON.
85. i. MARIAN R8 ANDERSON, b. October 02, 1898, Comstock, MI; d. April 13, 1989, Plainwell, MI.
ii. CLEO ANDERSON, m. PETERSON.
iii. HELEN ANDERSON, m. ARMINTROUT.
54. MARY ELIZABETH7 FLORA (WILLIAM6, DANIEL5, JACOB4, JOHN3, THOMAS2, JAMES1) was born November 1870 in Huntington Co., IN, and died 1960 in Kalamazoo, MI. She married HIRAM LEROY CARMAN June 01, 1898 in MI, son of OLIVER CARMAN and CALISTA DAVIS.
86. i. OLIVER PERRY8 CARMAN, b. May 29, 1904, Allegan Co, MI; d. January 04, 1996, Arnold, MD.
87. ii. ANN E CARMAN, b. August 07, 1906.
88. iii. FRANCES MARY CARMAN, b. May 30, 1908; d. July 1938, Kalamazoo, MI.
55. GRAYSON7 FLORA (DAVID6, DANIEL5, JACOB4, JOHN3, THOMAS2, JAMES1) was born 1858 in Clear Creek Twp., Huntington Co., IN. He married ELLA LULL.
56. PIERSON7 FLORA (DAVID6, DANIEL5, JACOB4, JOHN3, THOMAS2, JAMES1) was born May 1860 in Clear Creek Twp., Huntington Co., IN. He married ADELLA DRAKE. She was born July 1867 in MI.
ii. EDITH M. FLORA, b. February 1892, MI.
iii. THERON FLORA, b. August 1894, MI.
iv. CHARLES FLORA, b. November 1896, MI.
57. TIMOTHY TITUS7 FLORA (DAVID6, DANIEL5, JACOB4, JOHN3, THOMAS2, JAMES1) was born September 1861. He married VIDA BELLE ELY. She was born February 1868 in OH.
i. DAVID8 FLORA, b. July 1889.
ii. DONALD FLORA, b. September 1896.
58. GEORGE7 FLORA (DAVID6, DANIEL5, JACOB4, JOHN3, THOMAS2, JAMES1) was born September 1863. He married ALIDA LYDIA AIKEN. She was born September 1874 in MI.
59. MINNIE7 FLORA (DAVID6, DANIEL5, JACOB4, JOHN3, THOMAS2, JAMES1) was born January 1879. She married (1) NED HAGGER. She married (2) ARCH BOLLES.
60. ERASTUS7 FLORA (JOSEPH6, DANIEL5, JACOB4, JOHN3, THOMAS2, JAMES1) was born 1861, and died 1916. He married REBECCA J. ELY.
i. R. E.8 FLORA, b. February 23, 1893.
61. MARTHA BELL7 FLORA (JOSEPH6, DANIEL5, JACOB4, JOHN3, THOMAS2, JAMES1) was born 1864. She married M. S. KEASEY.
62. IDA MAY7 FLORA (JOSEPH6, DANIEL5, JACOB4, JOHN3, THOMAS2, JAMES1) was born 1866. She married WELLINGTON ELY.
63. LAURY ELMEDA7 FLORA (JOSEPH6, DANIEL5, JACOB4, JOHN3, THOMAS2, JAMES1) was born 1872. She married EDWARD GOODSELL.
64. SARAH H.7 FLORA (JACOB6, GEORGE5, JACOB4, JOHN3, THOMAS2, JAMES1) She married JOHN LAUFFER.
65. EMMA N.7 FLORA (JACOB6, GEORGE5, JACOB4, JOHN3, THOMAS2, JAMES1) She married BRISBANE.
66. EMMA7 FARBER (HARRIET6 FLORA, GEORGE5, JACOB4, JOHN3, THOMAS2, JAMES1) was born 1861. She married FRANKLIN SEEMANN.
67. FRANKLIN7 FARBER (HARRIET6 FLORA, GEORGE5, JACOB4, JOHN3, THOMAS2, JAMES1) was born 1863. He married LAURA WADSWORTH.
68. PHILIP7 FARBER (HARRIET6 FLORA, GEORGE5, JACOB4, JOHN3, THOMAS2, JAMES1) was born July 1869. He married EDITH CROOKS.
69. CARLOTTA HOPE7 FLORA (HARRISON6, GEORGE5, JACOB4, JOHN3, THOMAS2, JAMES1) was born June 28, 1873 in Flora Twp., Dickinson Co., KS, and died April 26, 1963 in Emporia, Lyon Co, KS. She married JOHN WILLIAM COVERDILL April 05, 1894 in Manchester, Dickinson Co, KS. He was born March 16, 1870 in Bainbridge, Putnam Co, IN, and died May 20, 1944 in Emporia, Lyon Co, KS.
89. i. FLORA HOPE8 COVERDILL, b. August 22, 1895, Flora Twp, Dickinson Co, KS; d. September 08, 1979, Elmdale, Chase Co, KS.
ii. MABEL COVERDILL, b. September 26, 1896, Flora Twp, Dickinson Co, KS; d. July 28, 1986, Emporia, Lyon Co, KS.
90. iii. FRANCES COVERDILL, b. January 11, 1900, Flora Twp, Dickinson Co, KS; d. November 13, 1989, Garnett, Anderson Co, KS.
iv. MARION COVERDILL, b. January 02, 1903, Flora Twp, Dickinson Co, KS; d. January 08, 1996, Emporia, Lyon Co, KS; m. JOHN ELMER CHAPMAN, September 01, 1928, Liberty, Clay Co, MO; d. 1968, Cottonwood Falls, Chase Co, KS.
91. v. CLARA JOY COVERDILL, b. November 26, 1903, Flora Twp, Dickinson Co, KS; d. October 01, 1976, Emporia, Lyon Co, KS.
70. FLORENCE FLORA7 FLORA (HARRISON6, GEORGE5, JACOB4, JOHN3, THOMAS2, JAMES1) was born January 18, 1877 in Flora Twp., Dickinson Co., KS, and died 1945 in OR. She married JOHN WILLIAM HUMPHREYS. He was born in Manchester, Dickinson Co, KS, and died in OR.
92. i. HELEN MARTHA8 HUMPHREYS.
71. HARRISON7 FLORA (HARRISON6, GEORGE5, JACOB4, JOHN3, THOMAS2, JAMES1) was born December 02, 1878 in Flora Twp., Dickinson Co., KS, and died June 01, 1939 in Parsons, Labette Co., KS. He married ADDIE M. TURNER October 19, 1906 in Abilene, Dickinson Co., KS, daughter of JOSEPH TURNER and LOUISA ELLISON. She was born June 18, 1882 in Brown Co., IL, and died August 01, 1956 in Parsons, Labette Co., KS.
93. i. HARRISON JENNINGS8 FLORA, b. December 25, 1907, Parsons, Labette Co., KS; d. January 05, 1967, Parsons, Labette Co., KS.
94. ii. HERMAN ZACHARIAH FLORA, b. March 27, 1911, Parsons, Labette Co., KS; d. December 1966, Coffeeville, Labette Co., KS.
95. iii. FLETCHER FLOYD FLORA, b. May 20, 1914, Parsons, Labette Co., KS; d. May 05, 1969, Leavenworth, Leavenworth Co., KS.
72. FRANK DALE7 FLORA (HARRISON6, GEORGE5, JACOB4, JOHN3, THOMAS2, JAMES1) was born December 11, 1882 in Flora Twp., Dickinson Co., KS, and died March 01, 1951 in Saint Joseph, Buchanan Co. MO. He married BLANCHE BAKER July 24, 1907 in Abilene, Dickinson Co., KS. She was born January 12, 1877 in Smarts Station, Warren Co., TN, and died February 02, 1963 in Saint Joseph, Buchanan Co. MO.
96. i. FRANKLIN HILL8 FLORA, b. January 25, 1912, Kansas City, Jackson Co., MO; d. November 26, 1997, Savanna, Andrew Co, MO.
97. ii. ANNE MARIE FLORA, b. August 12, 1914; d. December 06, 1970, Saint Joseph, Buchanan Co. MO.
73. ESTHER MARGARET7 FLORA (HARRISON6, GEORGE5, JACOB4, JOHN3, THOMAS2, JAMES1) was born April 1896 in Flora Twp., Dickinson Co., KS, and died September 28, 1974 in Concordia, Lafayette Co, MO. She married JOHN L. MARTENS.
ii. BEVERLY MARTINS, m. RICHARD JOHNSON.
74. MAGGIE7 BONEWITZ (JOSEPHINE6 SMITH, BARBARA5 FLORA, JACOB4, JOHN3, THOMAS2, JAMES1) She married CHARLES DAILY.
75. MARY ELLEN7 WADE (SUSAN6 FLORA, JACOB W.5, JOHN4, JOHN3, THOMAS2, JAMES1) was born November 10, 1867. She married BARTHOLOMEW ELLINGER September 1895.
76. LILLIAN BLANCHE7 WADE (SUSAN6 FLORA, JACOB W.5, JOHN4, JOHN3, THOMAS2, JAMES1) was born August 18, 1872. She married JOHN STEVENS December 04, 1895 in NE. He was born September 09, 1870.
99. i. WADE S.8 STEVENS, b. January 10, 1896.
ii. WAYNE STEVENS, b. March 15, 1898; d. June 22, 1928; m. LOTTIE AYERS.
100. iii. CONSTANCE STEVENS, b. December 26, 1900.
101. iv. SUSAN BLANCHE STEVENS, b. March 03, 1904; d. Onawa, IA.
v. VERA KATHRYN STEVENS, b. October 15, 1909; m. TED V. BRICH, June 25, 1930, Beaver City, NE.
77. PAUL7 FLORA (GEORGE B. MCCLELLAN6, JOHN WESLEY5, JOHN4, JOHN3, THOMAS2, JAMES1) was born March 08, 1901, and died March 24, 1950. He married MARGIE.
i. PATSY8 FLORA, b. 1926.
ii. SUSAN FLORA, b. 1926.
iii. ARLENE FLORA, b. 1928.
iv. GEORGE FLORA, b. 1940.
78. PAUL R.7 BROWN (CATHERINE MAUD6 FLORA, JOHN WESLEY5, JOHN4, JOHN3, THOMAS2, JAMES1) was born March 04, 1894, and died in East View, NY. He married (1) MIRIAN TURNER 1917. She died 1919. He married (2) BLANCHE TILLEY 1922.
i. JEAN8 BROWN, b. March 14, 1918.
ii. ROBERT8 BROWN, b. May 06, 1925.
79. GLADA7 BROWN (CATHERINE MAUD6 FLORA, JOHN WESLEY5, JOHN4, JOHN3, THOMAS2, JAMES1) was born December 05, 1896, and died 1950. She married (1) PRESCOTT CANN 1918. She married (2) EDWARD BRAND 1923.
i. JOHN P.8 CANN, b. June 04, 1918; d. September 1971.
ii. THEODORE8 BRAND, b. July 14, 1925; m. LOIS BRANDT.
80. VERA JANE7 BROWN (CATHERINE MAUD6 FLORA, JOHN WESLEY5, JOHN4, JOHN3, THOMAS2, JAMES1,) was born December 05, 1896. She married (1) E. GILBERT SNOWDEN 1918. She married (2) I. BENTON FUNK 1941. He died November 19, 1965.
i. CATHERINE VIRGINIA8 SNOWDEN, b. May 1918; d. 1918.
102. ii. IMOGENE SNOWDEN, b. October 07, 1919.
iii. PHYLLIS SNOWDEN, b. September 11, 1921; d. March 21, 1944.
iv. CARSON LEE SNOWDEN, b. August 05, 1925; d. June 03, 1926.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. V.


Cyan, Inc. v. Beaver Cty. Employees, No. 15-1439: Whether state courts lack subject matter jurisdiction over covered class actions that allege only Securities Act of 1933 claims.
Christie v. NCAA, Nos. 16-476 & NJ Thoroughbred Horsemen v. NCAA, No. 16-477: Does a federal statute that prohibits modification, adjustment, or repeal of state-law prohibitions on private conduct impermissibly commandeer the regulatory power of States in contravention of New York v. United States, 505 U.S. 144 (1992), and Printz v. United States, 521 U.S. 898 (1997)?
PEM Entities LLC v. Levin, No. 16-492: Whether bankruptcy courts should apply a federal rule of decision (as five circuits have held) or a state rule of decision (as two circuits have held, expressly acknowledging a split of authority) when deciding to characterize a debt claim in bankruptcy as a capital contribution.
Rubin v. Iran, No. 16-534: Whether 28 U.S.C. §1610(g) provides a freestanding attachment immunity exception that allows terror victim judgment creditors to attach and execute upon assets of foreign state sponsors of terrorism regardless of whether the assets are otherwise subject to execution under §1610.
Marinello v. United States, No. 16-1144: Whether the residual clause in §7212(a) of the Internal Revenue Code requires that there was a pending IRS action or proceeding, such as an investigation or audit, of which the defendant was aware when he engaged in the purportedly obstructive conduct.


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Howard, J. L., Coram, M. R., and Zawiskie, J. M., 2013, Stratigraphy, paleoenvironments and provenance of late Pleistocene glacial sediments in the southeastern Great Lakes region: Implications for ice sheet dynamics. In: Muller, J. and Koch, L. (eds.), Ice sheets: Dynamics, formation and environmental concerns. Nova Pub., New York, p. 1-54.
Howard, J. L., Dubay, B. R., and Daniels, W. L., 2013, Artifact Weathering, Anthropogenic Microparticles and Lead Contamination in Urban Soils at Former Demolition Sites, Detroit, Michigan: Environ. Pollut. 179, 1-12.
Howard, J. L., Dubay, B. R., McElmurry, S. P., Clemence, J., and Daniels, W. L., 2013, Comparison of sequential extraction and bioaccessibility analyses of lead using urban soils and reference materials: Water Air Soil Pollut. 224, 1678-1691.
Howard, J. L., 2014, Proposal to add anthrostratigraphic and technostratigraphic units to the stratigraphic code for classification of anthropogenic Holocene deposits: The Holocene, v. 24, p. 1856-1861.
Howard, J. L., Ryzewski, K., Dubay, B. R., and Killion, T. K., 2015, Artifact preservation and post-depositional site-formation processes in an urban setting: A geoarchaeological study of a 19th century neighborhood in Detroit, Michigan: Jour. Archaeol. Sci., v. 53, p. 178-189.
Howard, J. L., and Shuster, W. B., 2015, Experimental Order 1 soil survey of vacant urban land, Detroit, Michigan. Catena, v. 126, p. 220-230.
Howard, J. L., 2015, Glaciolacustrine history of the Huron-Erie lowland in the southeastern Great Lakes region (USA) revisited. Journal of Great Lakes Research, v. 41, p, 965-972.
Howard, J. L., and Orlicki, K. M., 2016, Effects of anthropogenic microparticles on the chemical and geophysical properties of urban soils, Detroit, Michigan, Soil Science, v. 180, p. 154-166.
Howard, J. L., and Orlicki, K. M., 2016, Composition, micromorphology and distribution of microartifacts in anthropogenic soils, Detroit, Michigan. Catena, v. 138, p. 103-116.
Howard, J. L., Orlicki, K. M., and LeTarte, S. M., 2016, Evaluation of geophysical methods for mapping soils in urbanized terrain, Detroit, Michigan USA. Catena, v. 143, p. 145-158.
Howard, J. L., 2017. Anthropogenic soils. Springer. Howard, J. L., 2017, Anthropogenic Soils: Springer, Amsterdam, Netherlands, 231 pp.
Howard, J. L., and Daniels, W. L., 2018, Soils of urban and human-impacted landscapes. In: Richardson, D., Castree, N., Goodchild, M. M., Kobayashi, A., Liu, W., and Marston, R. A. (Eds.), People, the Earth, Environment, and Technology. Wiley-AAG International Encyclopedia of Geography, Wiley, New York.
Ingersoll, R. V., Spafford, C. D., Jacobson, C. E., Grove, M., Howard, J. L., Hourigan, J., and Pedrick, J., 2018, Provenance, paleogeography and paleotectonic implications of the mid-Cenozoic Sespe Formation, coastal southern California, USA, in Ingersoll, R. V., Lawton, T.F., and Graham, S.A., eds., Tectonics, Sedimentary basins, and Provenance: A Celebration of William R. Dickinson’s career: Geological Society of America Special Paper 540, p. 1-22.

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After a jury trial, Defendant was convicted of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty, and armed home invasion. After filing a notice of appeal, Defendant filed a motion for a new trial arguing that his trial counsel was constitutionally ineffective for failing to investigate and present a defense of lack of criminal responsibility. Defendant also filed a second motion for a new trial. The trial court denied Defendant’s two motions for a new trial. The Supreme Judicial Court affirmed Defendant’s convictions and the orders denying the motions for a new trial and declined to reduce the verdict or grant a new trial, holding (1) the trial judge did not err in denying Defendant’s first motion for a new trial, as trial counsel’s decision to forgo further investigation of a lack of criminal responsibility defense based on mental illness was not error; and (2) Defendant’s remaining claims of error were either procedurally waived or without merit.
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 5571030; SJCReporter@sjc.state.ma.us SJC-08737 COMMONWEALTH Norfolk. Present: vs. DANIEL L. HOLLAND. November 10, 2016. - April 19, 2017. Gants, C.J., Lenk, Hines, Gaziano, & Lowy, JJ. Homicide. Armed Home Invasion. Constitutional Law, Assistance of counsel, Fair trial. Practice, Criminal, Capital case, Postconviction relief, Assistance of counsel, Fair trial, Comment by judge. Mental Impairment. Insanity. Indictments found and returned in the Superior Court Department on November 18, 1998. The cases were tried before Thomas E. Connolly, J., and motions for a new trial, filed on April 3, 2006, and December 18, 2008, were heard by him. Kevin S. Nixon for the defendant. Tracey A. Cusick, Assistant District Attorney, for the Commonwealth. HINES, J. On October 13, 1998, the victim was shot to death in her home. A jury convicted the defendant, the victim's estranged husband, of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty, and 2 armed home invasion. The defendant appealed from his convictions and from the denial of his two motions for a new trial. In his brief on appeal, the defendant argues that the trial judge erred in denying his first motion for a new trial on the ground that his trial counsel was constitutionally ineffective in failing to investigate and present a defense of lack of criminal responsibility. We affirm his convictions as well as the orders denying the motions for a new trial. Background. 1. The trial. Based on the evidence adduced at trial, the jury could have found the following facts. The defendant and the victim were married in 1989, and their son was born later that year. A few years later, the couple moved into their family home, located in Quincy. As time progressed, the marriage became turbulent and tension grew between the couple. In February, 1998, the victim sought and was granted a restraining order against the defendant, the terms of which required him to vacate the marital home. For a number of months, the defendant stayed with family or friends and later moved into an apartment in the Dorchester section of Boston. In September, 1998, the defendant and his then girl friend moved to Richmond, New Hampshire, to live with the defendant's uncle. On the afternoon of the day of the murder, the defendant began drinking one hundred proof peppermint schnapps and 3 ingesting Elavil1, a prescription medication that the defendant had found. Later that evening, the defendant purchased two twelve packs of beer, and drove to a nearby bridge where he drank the beers, smoked "crack" cocaine, and took more Elavil. Next, the defendant drove to a bar just over the Massachusetts border where he consumed more alcohol until the bartender refused to serve him. After leaving the bar, he ingested more Elavil and smoked crack cocaine and marijuana, before driving to Quincy. The defendant arrived the victim's home between approximately 11:30 P.M. and midnight. He retrieved his golf bag, containing golf clubs and a .22 caliber rifle, from the trunk of his vehicle. The defendant had purchased the rifle and .22 caliber ammunition a month or so before that night.2 Once on the porch, the defendant dropped a can of beer and a straw, and used the golf bag to break the front porch window of the home. He entered and went up the stairs to the master bedroom where he shot the victim with the rifle and beat her with the stock of 1 Elavil is an antidepressant prescription medication, which has sedative effects. 2 When purchasing the rifle from a department store, the defendant provided several false responses on the Bureau of Alcohol, Tobacco, Firearms, and Explosives form that is required to secure a firearm. He falsely indicated that he was neither subject to a restraining order nor "under indictment or information in any court" for which he could be imprisoned for more than one year. 4 the rifle until it broke into pieces. At around 8:30 A.M. the next day, the victim's eight year old son discovered his mother's body in the bedroom. The victim suffered gunshot wounds to her chest and abdomen, multiple lacerations on her head caused by blunt force trauma, and abrasions on her back. The cause of death was multiple gunshot wounds. Following the murder, the defendant drove back to his uncle's home. The defendant spoke with his uncle briefly and then got into bed with his girl friend. She noticed that his hands were swollen and had cuts on them. The defendant explained that he had been in a bar fight. When the defendant and his girl friend awoke on the morning of October 14, they packed an overnight bag for a trip to Massachusetts, where they planned to go to a bank to get money, possibly to leave town. The girl friend drove while the defendant slept in the passenger seat. The two arrived in Braintree at around 5 P.M., after the bank had closed. After speaking to a longtime friend of the defendant who did not want the pair to come to her house, the girl friend attempted to hide the vehicle, and ultimately discovered that the defendant's golf bag was missing from the trunk. When she asked the defendant if he had killed the victim, he said he was not sure, but that he remembered being on the porch of the 5 victim's home. After this conversation, the defendant and the girl friend planned to go to Florida, where she had family. The defendant ended up driving to Lawrence, where his cousin lived. Shortly thereafter, the police arrived and arrested the defendant. During a search of the defendant's vehicle, the police found one live round of ammunition; a box of .22 caliber ammunition; live rounds of .22 caliber ammunition in the pouch of a sweatshirt; and full and empty beer cans that matched the brand of beer the defendant had dropped on the porch. At trial, the defendant testified and presented witnesses in support of his mental impairment (diminished capacity) defense.3 The defendant and his uncle testified extensively on the defendant's drug and alcohol use, beginning when he was thirteen years of age. In his later teen years, the defendant was committed to the Department of Youth Services (DYS) because of his increasing drug and alcohol use. Even after his release from DYS custody, the defendant consistently used drugs and alcohol until he was twenty-four or twenty-five years old. 3 His Although the mental impairment is often colloquially referred to as "diminished capacity," it is well established that "there is no 'diminished capacity' defense in this Commonwealth." Commonwealth v. Companonio, 445 Mass. 39, 45 n.7 (2005), quoting Commonwealth v. Hardy, 426 Mass. 725, 729 n.5 (1998). However, "[i]n accordance with Commonwealth v. Gould, 380 Mass. 672, 673 (2005), a defendant 'may produce expert testimony on the issue whether or not the impairment of his mental processes precluded him from being able to deliberately premeditate.'" Companonio, supra. 6 drug use abated for a period of time after meeting and marrying the victim. The defendant acknowledged that, in February, 1998, he had to vacate the marital home because, following an argument, the victim obtained a restraining order against him. After staying with his parents for a few weeks, the defendant left their home and moved in with friend who lived in New Hampshire. During this time, the defendant used alcohol and drugs, including cocaine, prescription pills, sleeping pills, mushrooms, and marijuana. In March, 1998, after the defendant met and began dating his girl friend, his drug use "got out of control." The defendant's longtime friend testified that because of the restraining order and issues concerning the custody of the defendant's son, the defendant was "upset," "confused," and "stressing out," and began drinking more heavily, partying, and using crack cocaine and other drugs. A few months after meeting his girl friend, the defendant moved with her into an apartment in Dorchester. While living there, the defendant's job performance began to suffer, and he was referred to the Employee Assistance Program. According to the program counsellor, the defendant appeared depressed, upset, and emotional. Although the defendant admitted that he drank some alcohol during the week, the defendant did not mention his drug use. 7 The program counsellor referred the defendant to a therapist, Dr. John D. Eckelman, who assisted the defendant in obtaining paid stress leave from work. While on leave, the defendant's drug use increased to the point where he was drinking alcohol and using drugs all day. Although the defendant was receiving his salary while on paid leave, he took out a $20,000 loan against his retirement savings plan, using the money to pay legal bills and rent for the Dorchester apartment, and to purchase drugs. In August, 1998, the defendant lost visitation rights with his son and sunk deeper into drug and alcohol use. On August 31, 1998, the defendant went to a hospital emergency room, and checked himself in to a detoxification facility known as NORCAP, where he remained for approximately ten days. Shortly after leaving the detoxification facility, however, the defendant returned to his Dorchester apartment and resumed using drugs and alcohol. He missed two appointments with his employee assistance therapist. Although the defendant was supposed to return to work in August, 1998, he failed to do so. Throughout September, 1998, the defendant continued to use drugs and alcohol in increasing amounts and contemplated suicide. After exhausting his retirement loan funds, the defendant was unable to pay rent and was evicted from his apartment. The defendant and his girl friend moved in with the 8 defendant's uncle in Richmond, New Hampshire. There, the defendant continued to use drugs: crack cocaine, Klonopin, Valium, painkillers, and alcohol. According to the defendant's uncle, the defendant was "pretty well burned out" and "loaded" in the days leading up to the murder. Dr. Robert H. Joss, the defendant's retained expert and a forensic psychologist, opined that the defendant's drug and alcohol use on the day of the murder impaired his "ability . . . to carry out planful action" at that time. Joss added that the level of drugs and alcohol ingested by the defendant that day would have impaired his executive functioning, and would be "consistent with [the defendant] suffering blackouts." In rebuttal, the Commonwealth called Dr. John D. Eckelman, the therapist to whom the defendant was referred by his employee assistance counsellor. Eckelman testified that during their sessions, the defendant discussed his marital issues and admitted to feeling "very stressed and pressured" in his relationship with the victim. Although the defendant admitted to Dr. Eckelman that he drank during the week, the defendant apparently did not mention drug use. The Commonwealth also called Dr. Malcolm P. Rogers, a forensic psychiatrist with expertise in the effects of drug and alcohol consumption on the central nervous system. After interviewing the defendant and reviewing relevant records, Dr. Rogers opined that the defendant 9 "did not have any significant cognitive deficits" on October 13, 1998, and that the defendant had the capacity to form the specific intent kill the victim. 2. First motion for a new trial. In April, 2006, after filing a timely notice of appeal in this court, the defendant filed a motion for a new trial, claiming ineffective assistance of counsel based on trial counsel's failure to "investigate or develop a defense of lack of criminal responsibility stemming from defendant's history of mental illness and from defendant's drug and alcohol intoxication."4 Superior Court. We remanded the motion to the Following a nonevidentiary hearing, the trial judge denied the defendant's motion without specifically addressing the merits of the ineffective assistance of counsel claim. Discussion. 1. Standard of review. Where a defendant has been convicted of murder in the first degree, we review his ineffective assistance of counsel claim under G. L. c. 278, § 33E, to determine whether counsel's action, or the failure to act, created a "substantial likelihood of a miscarriage of justice," a standard more favorable to the defendant than the constitutional standard otherwise applied under Commonwealth v. 4 The defendant filed a second motion for a new trial claiming a violation of his Sixth Amendment right to a public trial. He does not press the denial of this second motion for a new trial in this appeal. Nonetheless, we have reviewed the issue pursuant to our duty under G. L. c. 278, § 33E. 10 Saferian, 366 Mass. 89, 96 (1974). Commonwealth v. Wright, 411 Mass. 678, 681-682 (1992), S.C., 469 Mass. 447 (2014). We focus more broadly on whether there was error, rather than on the "adequacy of counsel's performance." Id. at 682. If there was error, the defendant will meet his burden to establish a "substantial likelihood of a miscarriage" of justice only if the error "was likely to have influenced the jury's conclusion." Commonwealth v. Spray, 467 Mass. 456, 472 (2014), quoting Commonwealth v. Wright, supra. "Where a new trial is sought based on a claim of ineffective assistance of counsel, the burden of proving ineffectiveness rests with the defendant." Commonwealth v. Kolenovic, 471 Mass. 664, 673 (2015), quoting Commonwealth v. Montez, 450 Mass. 736, 755 (2008). 2. Trial counsel's failure to investigate and develop a lack of criminal responsibility defense. investigate. a. Failure to The defendant recounts a litany of claimed lapses in making the case that counsel failed to investigate the possibility that at the time of the murder, the defendant suffered from a mental illness that would support and compel a lack of criminal responsibility defense. In particular, he claims that counsel erred in failing to investigate (1) the defendant's self-reporting of a diagnosis, made some seventeen years earlier, of mental illness (schizophrenia) and "organic brain abnormality"; (2) facts contained in the homicide 11 investigation reports suggesting that the defendant was mentally ill;5 (3) a statement from his girl friend that the defendant, on the day after the murder, told her "it had seemed like a bad dream"; (4) the defendant's report to his investigator that he was in a "dreamlike" state; (5) the defendant's statement to the Commonwealth's examining psychiatrist that he remembered being on the porch but he could not recall if it was a dream or reality; (6) the defendant's statement during the competency evaluation that he "hears screaming"; (7) a statement to the oncall employee assistance therapist on August 31, 1998, that he was having "crazy thoughts"; and (8) progress notes from the Norfolk County jail where the defendant was being held pending trial. These lapses, he argues, are of such moment that the judge erred in denying his motion for a new trial. We disagree. "Failure to investigate an insanity defense [falls] below the level of competence demanded of attorneys, if facts known to, or accessible to, trial counsel raised a reasonable doubt as to the defendant's mental condition." Commonwealth v. Roberio, 428 Mass. 278, 279-280 (1998), S.C., 440 Mass. 245 (2003), quoting Commonwealth v. Doucette, 391 Mass. 443, 458-459 (1984). Thus, a duty to investigate an insanity defense arises when counsel is aware of information suggesting at least the 5 The defendant does not specify, in his brief, the facts upon which this contention is based. 12 viability of a lack of criminal responsibility defense. Roberio, supra at 280. We consider next the information available to trial counsel and whether counsel acted reasonably in response to that information. The defendant's assertion that he had a history of mental illness that warranted further investigation is not borne out by the record. What counsel knew from the defendant and others he consulted during his preparation for trial was not of sufficient clarity or certainty to create a "reasonable doubt as to the defendant's mental condition." Roberio, 428 Mass. at 280. At best, counsel was aware that the defendant believed that he suffered from a mental illness. The only evidence of this condition was the defendant's self-reporting and his uncle's claim that he suffered from mental illness and an "organic brain abnormality," both discovered when he was committed to DYS and hospitalized seventeen years earlier. Even if the evidence had established that the defendant suffered from psychotic episodes or some other mental illness when he was an adolescent, seventeen years prior to the murder, counsel had no basis to assume a connection between his mental condition as a teenager and his mental condition at the time of the murder. See Commonwealth v. Walker, 443 Mass. 213, 225-226 (2005) (suicide attempt and military discharge occurring thirteen years before 13 victim's killing insufficient to suggest potential insanity defense). In the motion for a new trial, the defendant claimed that certain facts discovered during the homicide investigation should have alerted counsel to the need to investigate a lack of criminal responsibility defense. Because the defendant has not informed us of those facts, we cannot determine whether, with knowledge of those facts, counsel would be compelled to consider the defense. The statements from those persons in close contact with the defendant, both before and after the murder, are scant evidence that the defendant may have lacked criminal responsibility when he killed the victim. These statements do not necessarily signify mental illness. Instead, they may just as easily manifest profound regret that a life has been taken in so brutal a fashion. Last, the defendant's reliance on progress notes from the health services for the Norfolk County sheriff's office also fails to advance his argument. The progress notes report that the defendant was "quite anxious," had "excessive dwelling on . . . problems," "low energy," "variable sleep," and "racing thoughts on other problems."6 6 Similarly, a September, 1998, Intake forms from the defendant's detoxification facility, NORCAP, list a litany of symptoms as an option for "[c]hief 14 discharge summary from NORCAP noted that the facility's psychiatrists thought the defendant had "dysthymia"7 and "some mood swings," and prescribed an antidepressant medication. The report also noted, "[m]ini mental normal," "[n]eurological negative." Notably, the discharge summary discharge disposition reflected only follow up with a primary care physician. As we have stated previously, "a decision not to pursue an insanity defense for tactical reasons, for instance because in the circumstances the defense would be factually weak, is not tantamount to ineffective assistance of counsel." Spray, 467 Mass. at 473. Given the dearth of information suggesting even the possibility of a viable lack of criminal responsibility defense, we discern no basis to conclude that trial counsel was obliged to embark on a futile journey into the realm of an insanity defense. See Commonwealth v. Lang, 473 Mass. 1, 15 (2015) (Hines, J., concurring) (rejecting proposition that defense counsel must "pursue a full scale mental evaluation in every [c]omplaint," including but not limited to hallucinations, delusions, severe agitation, manic behavior, and bizarre behavior, but only "depression," "ETOH dependence," and "drug dependence" were marked for the defendant. 7 Dysthymia is mild depression or a chronic, more persistent depression that is not of the same severity as a major depression. 15 case where the facts or the defendant's background suggests only a hint of a mental issue"). Even if counsel was obligated to investigate the defendant's mental history, trial counsel was not culpably derelict in handling the issue of the defendant's mental condition at the time of the murder. Leading up to the trial, the defendant was represented by three different attorneys. Although these attorneys, both retained and appointed, did not do all that the defendant demanded, they took appropriate and necessary steps to investigate the defendant's mental history and the possibility of a lack of criminal responsibility defense. (2006). See Commonwealth v. Candelario, 446 Mass. 847, 857-858 Trial counsel had the benefit of these efforts in preparing the defense offered at trial. The defendant's first attorney retained Dr. Harold R. Rosenblatt, a specialist in internal medicine and addiction medication at the Spaulding Rehabilitation Hospital, to assess the impact that drugs and alcohol may have had on the defendant's mental state at the time of the murder. Although privately retained, this attorney also filed a motion for funds for electroencephalogram (EEG) and computerized tomography (CT) testing of the defendant's brain functioning. Dr. Rosenblatt did not testify at trial, but the first attorney's pretrial disclosure indicated that Dr. Rosenblatt was prepared to opine 16 on the effect of drugs and alcohol on the defendant's ability to form a specific intent to kill. The defendant's second attorney requested and received authorization from the trial court judge to retain a psychiatrist to examine the defendant.8 Prior to his withdrawal from the case,9 this attorney, at the defendant's insistence, also filed a motion for funds to hire a neurologist to evaluate the defendant for his claimed "brain abnormality." In advocating for the testing, defense counsel explained that although no medical professional recommended the testing, he sought funds because "[the defendant] feels and strongly suspects that he suffers from a brain abnormality, which if [sic] could be explored and shown to be true would then allow a him a full-blown insanity defense." Noting that the defendant 8 Although the judge allowed the defendant's motion in the amount of $5,000 in October, 2000, defense counsel represented to the judge that the funds allotted were insufficient to hire a psychiatrist. This attorney, who was personally selected by the defendant for appointment by the court, withdrew from the case after the defendant represented to the judge that the relationship had broken down over the defense of the case. 9 The defendant filed an oral motion to "discharge" his attorney due to a "breakdown of [the attorney-client relationship] with regard [the defendant's] defense." The attorney assisting the defendant's second defense attorney stated that he was in communication with forensic psychologist Dr. Robert Joss and a neuropsychologist to explore the impact that prolonged substance abuse may have had on the defendant's brain, but did not move forward with the process because he was not primary counsel on the case. After several disruptions by the defendant, the judge granted defense counsel's motion to withdraw. 17 presented no evidence (medical or otherwise), beyond his own belief, that he suffered from an brain abnormality, the judge denied the motion. In December, 2000, the judge appointed the third attorney, who eventually tried the case. At counsel's urging, the judge ordered the defendant to undergo EEG testing and a CT scan. Neither test yielded abnormal results. Beyond these tests, trial counsel also took steps to have the defendant evaluated to determine whether he was competent to stand trial. A few days before the defendant's scheduled trial date, trial counsel filed a motion for a competency evaluation pursuant to G. L. c. 123, § 15, and, in "an exercise of extreme caution," the judge granted the motion. After evaluating the defendant, the director of forensic services at Bridgewater State Hospital determined that the defendant was not suffering from a major mental illness and that he was competent to stand trial. Other tests suggested that the defendant was possibly "exaggerat[ing] or malingering."10 This doctor noted: "In my opinion, [the defendant's] behavioral outbursts, bouts of uncooperativeness with attorneys, insistency that his wife is not dead, and rigidity and 10 Indeed, while awaiting trial in pretrial detention, the defendant told his girl friend during telephone conversations that if he went to Bridgewater State Hospital, it would be "easier," the food would be better, and he would be able to give her a hug. 18 stubbornness about these issue[s] make him [a] problematic defendant, but not an incompetent one. His difficulties are not born of a mental illness or mental defect, but rather reflect a man who is desperately trying to avoid reality, of which he is well aware." Following a hearing on competency, the judge found the defendant competent to stand trial. Considering the totality of the information available to counsel, the record is devoid of evidence that even remotely suggests a more comprehensive investigation would have revealed evidence supporting an insanity defense. at 225-226. See Walker, 443 Mass. Accordingly, trial counsel's decision to forgo further investigation of a lack of criminal responsibility defense based on mental illness was not error. In his motion for a new trial, the defendant argued that he was prejudiced by counsel's failure to investigate the information that counsel would have discovered if the claimed lapses had not occurred. Rather than showing prejudice, however, this information shows that it would not have made a difference in the viability of a lack of criminal responsibility defense. A July, 1981, DYS psychiatric evaluation noted that the defendant described "recurrent experience of depersonalization" and "paranoid delusions," but also noted that the defendant's "[r]eality testing was intact and there were no indications of thought disorder." Although the evaluation concludes that the defendant was "bordering on psychotic 19 decompensation" and recommended that he undergo further psychiatric treatment, nothing in the evaluation suggests that the defendant was ever diagnosed with a mental illness. Similarly, absent from the September, 1981, follow up DYS report detailing the defendant's treatment plan is the suggestion that the defendant suffered from a mental illness. The defendant also points to certain DYS records indicating that he was an inpatient at a hospital in August, 1981.11 In his affidavit, the defendant asserts that the EEG test administered at the hospital he was sent to by DYS "indicated possible schizophrenia." However, as is clear from Dr. Joss's affidavit, EEG testing will not show schizophrenia. Therefore, the records would have provided little if any insight into whether the defendant suffered from such a mental illness, evidence that could have triggered an obligation to further investigate the issue. See Roberio, 428 Mass. at 279-280. The defendant's reliance on seventeen year old DYS and related hospital records is not persuasive. At most, the records reflect only a suggestion that the defendant may have suffered from a mental illness as an adolescent. was thirty-four at the time of the murder. The defendant Moreover, the defendant's EEG and CT scans showed no abnormalities. 11 Beyond Although this hospital confirmed that the defendant was an inpatient, the facility was unable to locate his charts. 20 indicating that the defendant appeared to exhibit signs of depression and to be upset, tired, and emotional, neither the employee assistance counsellor nor Dr. Eckelman's testimony suggested that the defendant was suffering from a mental illness. 3. Reasonableness of trial counsel's strategic decision. Where the claimed ineffectiveness is the result of a tactical decision of counsel, the defendant will prevail only if he demonstrates that counsel's tactical choice was "manifestly unreasonable" (citation omitted). Kolenovic, 471 Mass. at 674. As a threshold matter, we do not doubt that trial counsel's decision to forgo a lack of criminal responsibility defense in favor of a mental impairment defense was a tactical choice. In January, 2001, trial counsel filed a notice of intent to present an insanity defense. However, at trial, counsel noted, "I deliberately stayed as far away from the issue of insanity as I could" because "I do not know if I have it," and eventually chose to withdraw that defense. Based on what we have said about the lack of evidentiary support for a lack of criminal responsibility defense, we are persuaded that counsel's strategic decision was not manifestly unreasonable. "[A] decision not to pursue an insanity defense for tactical reasons . . . is not tantamount to ineffective assistance of counsel." Spray, 467 Mass. at 473. 21 Two principles guide the "manifestly unreasonable" test. First, "we evaluate the [strategic or tactical] decision at the time it was made, and make 'every effort . . . to eliminate the distorting effects of hindsight.'" Commonwealth v. Glover, 459 Mass. 836, 843 (2011), quoting Commonwealth v. Fenton F., 442 Mass. 31, 38 (2004). Second, "[s]ubstantively, [o]nly strategy and tactics which lawyers of ordinary training and skill in criminal law would not consider competent are manifestly unreasonable" (quotations omitted). Kolenovic, 471 Mass. at 674, quoting Commonwealth v. Pillai, 445 Mass. 175, 186-187 (2005). Although there was little evidence that the defendant suffered from a mental illness at the time of the murder, there was substantial evidence of the defendant's alcohol and drug use. Defense counsel had information from the defendant, a close relative, and close friends regarding his history of drug and alcohol use. Trial counsel also had access to records from the defendant's stay at NORCAP and from the counselling sessions with Dr. Eckelman. Indeed, other than a mental impairment defense based on the defendant's drug and alcohol use, counsel had no other option. As we have stated, "reasonableness does not demand perfection." Kolenovic, 471 Mass. at 674. Rather, "the manifestly unreasonable test . . . is essentially a search for 22 rationality in counsel's strategic decisions, taking into account all the circumstances known or that should have been known to counsel in the exercise of his duty to provide effective representation." Id. at 674-675. "The deference we give to defense counsel's strategic judgment in determining whether it was manifestly unreasonable reflects the strong presumption that counsel knows best how to defend a client." Glover, 459 Mass. at 843. Although trial counsel's strategic choice failed to yield a favorable disposition for the defendant, nevertheless, we cannot conclude that it was manifestly unreasonable or inconsistent with what "'lawyers of ordinary training and skill in criminal law' would deem to be competent." Kolenovic, 471 Mass. at 675, quoting Pillai, 445 Mass. at 186-187. 4. Relief pursuant to G. L. c. 278, § 33E. In his appeal, the defendant raises only the ineffective assistance of counsel claim discussed above. Nevertheless, pursuant to our obligations under G. L. c. 278, § 33E, we examine the "whole case for its consideration of the law and the evidence." c. 278, § 33E. G. L. See Commonwealth v. Brown, 376 Mass. 156, 166- 167 (1978). a. Ineffective assistance of counsel in the presentation of the mental impairment defense. Although the defendant did not argue in his motion for a new trial that counsel's 23 presentation of the mental impairment defense based on drug and alcohol use was inadequate, he asserts the point indirectly in this appeal from the denial of the first motion for new trial. Nonetheless, we consider the issue in our G. L. c. 278, § 33E, review in which the inquiry is whether counsel's performance in presenting the mental impairment defense resulted in a substantial likelihood of a miscarriage of justice. We conclude that the defendant has failed to demonstrate that better preparation of the mental impairment defense would have produced more persuasive testimony from Dr. Joss or more convincing evidence of mental impairment. In analyzing defense counsel's presentation of the defense of mental impairment, we "evaluate the conduct from counsel's perspective at the time." Lang, 473 Mass. at 21 (Lenk, J., concurring), quoting Strickland v. Washington, 466 U.S. 668, 689 (1984). At trial, defense counsel presented the testimony of the defendant's uncle, with whom the defendant lived prior to the murder, and the defendant's longtime friend, both of whom testified to the defendant's extensive and consistent history of drug and alcohol use. Trial counsel also vigorously cross- examined the defendant's girl friend regarding the defendant's history of drug and alcohol use. Additionally, the defendant testified at length to his drug and alcohol use both historically and on the day of the victim's killing. 24 Beyond the defendant's testimony and the testimony of the lay witnesses, trial counsel introduced expert testimony from Dr. Joss, a forensic psychologist experienced in evaluating individuals in the area of criminal responsibility and competency to stand trial. In support of his claim of ineffective assistance of counsel, the defendant points out that defense counsel waited until after trial had begun to contact Dr. Joss and failed to provide him pertinent written records. Further, the defendant notes that Dr. Joss interviewed him a mere four days before Dr. Joss testified. Although we are troubled by trial counsel's unorthodox approach of preparing Dr. Joss for trial at what can unarguably be described as the eleventh hour, ultimately the issue is not what it took to accomplish the task but whether it was accomplished. Notwithstanding trial counsel's ill-advised timing with respect to contacting Dr. Joss, the testimony as to the defendant's mental impairment on the day of the murder was adequate for its purpose. Dr. Joss opined that, based on the various substances that the defendant ingested, including large quantities of alcohol, prescription medications, crack cocaine, and marijuana, the defendant was "impaired in his ability to plan [and] to carry out planful action" on October 13, 1998. Moreover, Dr. Joss opined that the amount of drugs and alcohol the defendant 25 ingested on the night of the victim's killing was "consistent with suffering blackouts." Importantly, Joss explained to the jury the difference between the effect of drugs and alcohol on cognitive function versus motor function, a topic on which the Commonwealth focused in its cross-examination. Specifically, he explained that a person may be able to maintain motor coordination "reasonably well," yet be deficient in other aspects of cognitive function. Thus, Dr. Joss opined that although a person's mental state may be impaired, he may still retain the physical coordination to move or travel. To arrive at his opinion Dr. Joss interviewed the defendant for ninety minutes and examined myriad written materials, including the defendant's thirty-one page narrative of his drug and alcohol abuse throughout his life, Dr. Rogers's two evaluations, records from a "private, live-in school" where the defendant resided for a period of time as an adolescent, and medical records from the defendant's visit to a hospital emergency room visit in August, 1998. Moreover, the record suggests that even though trial counsel did not ultimately secure Dr. Joss as an expert until midtrial, trial counsel had been in contact with Joss well before the trial commenced.12 12 In fact, Dr. Joss was among the specialists with whom the defendant's second set of trial counsel communicated in order to explore the issue whether the defendant suffered from an organic 26 Given Dr. Joss's testimony as to the defendant's mental state at the time of the victim's killing, along with the extensive lay witness testimony as to the defendant's use of drugs and alcohol, we conclude that trial counsel's preparation and presentation of the mental impairment defense was not inadequate such that it was likely to have influenced the jury's verdict. b. Closed court room. We have considered the issue raised in the defendant's second motion for a new trial and "conclude that the motion judge properly determined that the defendant had not borne his burden of demonstrating that the court room was closed during any portion of the jury selection, because the defendant offered no evidence indicating that the court room was closed by any specific order or that court officers ever told anyone to leave." (2015). Commonwealth v. Drayton, 473 Mass. 23, 31 Moreover, the defendant failed to object to the alleged court room closure during trial and declined to raise the issue on direct appeal, therefore it is deemed procedurally waived. See Commonwealth v. Penn, 472 Mass. 610, 622 (2015), cert. denied, 136 S. Ct. 1656 (2016), quoting Commonwealth v. LaChance, 469 Mass. 854, 857 (2014), cert. denied, 136 S. Ct. 317 (2015). brain syndrome due to a period of prolonged substance abuse. See note 9, supra. 27 c. The trial judge's comments to defense counsel. We also briefly address the trial judge's interactions with defense counsel in the presence of the jury. On two occasions the judge made comments during trial that, according to defense counsel, suggested to the jury that the judge had an opinion in the case or negatively characterized defense counsel's behavior. have stated, "a judge need take no vow of silence. As we He is there to see that justice is done, or at least to see that the jury have a fair chance to do justice. . . . The judge ought not let the jury be diverted from the real issue" (citation omitted). Commonwealth v. Haley, 363 Mass. 513, 519 (1973). Based on our review of the transcript, we conclude that the trial judge adequately "[trod] the narrow path that lies between meddlesomeness . . . and ineffectiveness" (citation omitted). Id. at 519. Throughout the trial, the judge was generally respectful and patient with both parties, reserving most colloquies between the parties and the court for sidebar. Although the judge may have gently rebuked defense counsel on occasion, we conclude that the comments did not create a substantial likelihood of a miscarriage of justice. See id. at 521 ("A judge may warn or rebuke counsel in a proper case"). Moreover, in an abundance of caution, the judge twice gave 28 curative instructions reminding the jury that he was neutral on the issue and had no opinion regarding the facts of the case.13 Conclusion. Having reviewed the entire record and the briefs on appeal, we see no reason to reduce the verdict or grant a new trial. Accordingly, we affirm the defendant's convictions and the orders denying his motions for a new trial. So ordered. 13 The trial judge instructed, "If I have said or done anything to cause you to believe that I have any opinion concerning the facts in this case, you are mistaken because I am totally neutral on this issue. It is your decision, not mine, to determine whether the Commonwealth has met its burden of proof."