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On Feb. 21, 1996, Daniel Caldwell received a near-fatal head wound caused by a gunshot in the home of a friend. The event was witnessed by three people, including 15-year-old Ricky Cullipher, Jr. After the gunshot, everyone then present left the house in various stages of distress, clearly concerned about the consequences of the act which had just taken place. Two of them arranged medical assistance for Caldwell, and another disposed of the weapon. In due course, all returned to the home and were available to the police for questioning.

Cullipher fled the scene, stopping first at the home of a female classmate to whom both Cullipher and Caldwell were attracted. Later, when he arrived at his home, Cullipher was in such a state of distress that his father immediately questioned him. Upon learning of the events that took place, Cullipher Sr. returned Cullipher Jr. to the crime scene in order for Cullipher to speak with police investigators.

Cullipher gave the police a long, detailed statement. His explanation was that the four individuals had been in the house smoking marijuana. One of them produced a revolver, which he claimed to have purchased earlier that day. Caldwell asked to see the gun after it was unloaded. Caldwell looked at it and then suggested that the group play Russian Roulette. Everyone refused.

Caldwell then loaded the pistol with one round, spun the cylinder, and shot himself in the head. Cullipher explained that he ran in sheer terror because of what had happened. Two of those present at the shooting were African-American and had experienced previous problems with the law. Immediately after Caldwell was injured, they agreed to inform the authorities that Caldwell had been shot "by some white guy" in order to deflect blame from themselves. Cullipher was the only white male at the scene of the shooting.

Eventually, all present at the shooting gave statements reflecting exactly what Cullipher had told the police. The authorities then seemed to be satisfied that Caldwell's injuries were self-inflicted.

Edgar Browning, the Hampton police detective in charge of the investigation, eventually went to Riverside Rehabilitation Center in the spring of 1996 to talk with Caldwell. Browning had been informed by Caldwell's mother that her son told her that he had been shot by Cullipher. Caldwell, still recovering from the severe injury he sustained, was then unable to communicate with Browning.

In May 1996, Browning returned to the hospital and interviewed Caldwell. In the course of the conversation, Caldwell had purportedly stated to Browning that he had been shot by Cullipher. Browning believed Caldwell and placed Cullipher under arrest the same day.

Cullipher, accompanied by his father at police headquarters, was confronted by Browning with Caldwell's claim. Browning made it clear to Cullipher that he wanted a statement about the facts. Since he believed Caldwell, Browning sought a statement markedly different from the one Cullipher provided on the night of the incident. Cullipher initially denied that he shot Caldwell and reaffirmed his first statement, asserting that Caldwell had shot himself.

Browning made no inquiry about the petitioner's educational or intellectual status, and he did not seek Cullipher Sr.'s assistance in attempting to resolve matters. Instead, Browning suggested that Cullipher and his father be separated and informed that father that his son might feel more comfortable talking to Browning alone. At the end of the interrogation, Cullipher gave Browning a statement which was construed as a "confession." Based upon the new statement, Cullipher was charged with the malicious wounding of Caldwell.

The juvenile and domestic relations district court for the city of Hampton certified Cullipher, 15, for trial as an adult and transferred the matter to the Hampton Circuit Court. Thereafter, Cullipher was indicted and ultimately convicted at a bench trial.

Cullipher's father initially retained George L. Smith to represent his son. Smith entered the case within a few days of Cullipher's arrest and represented Cullipher through the transfer hearing and trial.

Immediately after the trial, Smith was fired. Eventually, J. warren Tomlin was retained as counsel. Several hearings were conducted on Cullipher's motion for reconsideration of the transfer order certifying him for trial as an adult; the motion for a mistrial; the motion for a new trial; the motion to compel post-trial discovery of exculpatory evidence; the motion for competency determination; the motion for suppression of involuntary confession; and the motion for sentencing as a juvenile. All motions were denied.

Some 11 months after conviction, Cullipher returned to the circuit court for sentencing. After noting the utter tragedy of the circumstances, the court sentenced Cullipher as an adult to 20 years in the penitentiary on the maiming charge, 14 of which were suspended for a period of 20 years; and three years in the penitentiary, consecutively, on the charge of use of a firearm in the commission of a felony. All defense motions were renewed and denied at the sentencing hearing.

Cullipher moved for a new trial based on after-discovered evidence which was dismissed for lack of jurisdiction. Other post-trial motions and a petition for a writ of habeas corpus were denied. Both the denial of the petition for writ of habeas corpus and the original conviction were pursued on appeal and denied.

A federal petition for writ of habeas corpus was filed, and an evidentiary hearing was conducted. The writ of habeas corpus was granted upon grounds of ineffective assistance of counsel, and the Virginia Department of Corrections was ordered to release Cullipher immediately from incarceration. Cullipher had by that time served over four years of his sentence.

The Commonwealth of Virginia, under mandate from U.S. Magistrate Judge James E. Bradberry, chose not to retry Cullipher on any of the charges for which he had been previously convicted. All indictments were nolle prossed.

A legal malpractice cause of action was brought against George L. Smith, maintaining in part that while representing Cullipher, he negligently: (1) failed to make notes of his interviews and appointments with the petitioner, Cullipher, or the petitioner's mother; (2) failed to file written motions for discovery in both the juvenile and domestic relations district court or circuit court; (3) failed to review relevant court files as well as police and Commonwealth’s Attorney files made available to counsel; (4) failed to interview any witnesses; (5) failed to confer with the doctors responsible for Caldwell’s surgical and rehabilitative care; (6) failed to interact with his own client long enough to conclude that he was educationally and intellectually handicapped; (7) failed to seek assistance in presenting petitioner’s educational/intellectual situation either to the juvenile and domestic relations district court or to the circuit court; (8) failed to appeal the petitioner’s transfer from the juvenile and domestic relations district court to the circuit court for trial; (9) failed to review Caldwell’s medical records for the relevant periods of his rehabilitative history in April and May, 1996; (10) failed to locate and talk with a critical witness present in the room immediately before Caldwell was injured and who corroborated the initial statement provided by petitioner; (11) failed to locate and talk with another witness in the room at the time of the shooting; (12) talk with an eyewitness before trial; (13) failed to properly move for a continuance of the bench trial due to the non-appearance of an exculpatory witness who had been personally served with a subpoena, but failed to appear; (14) failed to properly and adequately cross-examine witnesses called to testify against Cullipher in the course of trial; (15) failed to challenge the "confession" offered by the Commonwealth or challenge the circumstances under which it was obtained; (16) failed to know that in the criminal trial of a juvenile being tried as an adult, a jury has no power to sentence upon conviction; (17) failed to explain to the accused his right to jury trial and advise him as to the most prudent course to follow; and (18) failed to demand a jury trial for the accused.

These failures of Smith breached the standard of care of prudent practitioners representing criminal defendants in prosecutions such as the one for which Cullipher was convicted of two felonies. Additionally, Smith actually admitted that in his own mind Cullipher was guilty of the crimes charged and, without the authority of Cullipher or his parents, decided not to perform the foregoing acts, which violated his obligation to represent Cullipher in an acceptable and professional fashion.

Awarded: $3,000,000

DISCLAIMER: Please note that every case is different, and the verdicts and settlements mentioned on this website, while accurate, do not represent what we may obtain for you in your case.

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Breit Drescher & Imprevento, P.C.
1000 Dominion Tower
999 Waterside Drive
Norfolk, VA 23510
Phone: 757.622.6000
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