COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Bray and Bumgardner 

Argued at Chesapeake, Virginia 

CARLTON NELSON, JR., A/K/A 

 CARLTON WILLIAMS 

 MEMORANDUM OPINION* BY 

v. Record No. 0283-99-1 JUDGE RICHARD S. BRAY 

 APRIL 4, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

Von L. Piersall, Jr., Judge 

 Anthony J. Nicolo (Ferrell, Sayer & Nicolo, 

on brief), for appellant. 

 Michael T. Judge, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 Carlton Nelson, Jr. (defendant) was convicted on an 

indictment charging aggravated malicious wounding and related 

use of a firearm, crimes committed on November 6, 1996, while 

defendant was seventeen years of age. On appeal, defendant 

argues that the trial court was without jurisdiction because (1) 

the offense of aggravated malicious wounding was not certified 

to the grand jury from the juvenile and domestic relations 

district court (J&D court), and (2) his natural mother was not 

notified of the initial J&D court proceedings in accordance with 

former Code § 16.1-263(A). Defendant further complains that the 
trial court erroneously limited cross-examination of a 

Commonwealth witness. We affirm the trial court. 

 The parties are fully conversant with the record, and this 

memorandum opinion recites only those facts necessary to a 

disposition of the appeal. 

I. Aggravated Malicious Wounding 

 The instant prosecution was commenced in the J&D court upon 

petitions alleging that defendant committed certain acts, which 

constituted aggravated malicious wounding "in violation of Code 

[§] 18.2-51.2," and "use[d] [a] firearm in the commission of 

[such] offense." Following a preliminary hearing pursuant to 

Code § 16.1-269.1(B), the provision applicable to aggravated 

malicious wounding,1 the J&D court found "from the evidence 

presented . . . that [defendant] was fourteen (14) years of age 

or older at the time of the alleged offense[s]" and "that there 

is probable cause to believe that [he] committed the offense[s] 

alleged in the petition[s]," ordering "the said charges" 

certified to the grand jury." 

 However, the order, on a single occasion, inconsistently 

recited that defendant was before the J&D court on a petition 

 1

 Code § 16.1-269.1(B) provides, in pertinent part: "The 

juvenile court shall conduct a preliminary hearing whenever a 

juvenile fourteen years of age or older is charged with . . . 

aggravated malicious wounding in violation of § 18.2-51.2." 

 Code § 16.1-269.1(C) provides, in pertinent part: "The 

juvenile court shall conduct a preliminary hearing whenever a 

juvenile fourteen years of age or older is charged with . . . 

malicious wounding in violation of § 18.2-51 . . . ." 

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that alleged "Malicious Wounding," rather than aggravated 

malicious wounding. Thus, after arraignment in the trial court 

on the subject indictment, defendant moved to "restrict the 

Commonwealth from proceeding on . . . aggravated malicious 

wounding," contending that only malicious wounding was certified 

by the J&D court to the grand jury. 

 Defendant's argument overlooks Code § 16.1-269.1(D), which 

provides, in pertinent part: 

 If the court does not find probable 

cause to believe that a juvenile has 

committed the violent juvenile felony as 

charged in the petition or warrant, or if 

the petition or warrant is terminated by 

dismissal in the juvenile court, the 

attorney for the Commonwealth may seek a 

direct indictment in the circuit court. 

Thus, assuming, without deciding, that the J&D court found the 

evidence insufficient to establish probable cause to believe 

defendant committed aggravated malicious wounding and intended 

to certify the lesser offense of malicious wounding to the grand 

jury, the Commonwealth was free to proceed by direct indictment 

for the original offense, notwithstanding such order. 

II. Notice 

 Former Code § 16.1-263(A) required that, "after a petition 

has been filed," the juvenile court "shall direct the issuance 

of summonses, one directed to the juvenile . . . and another to 

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the parents . . . ."2 The Commonwealth concedes that such notice 

was not provided defendant's mother incident to the petitions 

commencing the subject prosecution in the J&D court. 

 We have previously "held that the provisions of Code 

§§ 16.1-263 and 16.1-264, 'relating to procedures for 

instituting proceedings against juveniles, are mandatory and 

jurisdictional,' and the failure to 'strictly follow' these 

notice procedures denies a juvenile defendant 'a substantive 

right and the constitutional guarantee of due process.'" Baker 

v. Commonwealth, 28 Va. App. 306, 310, 504 S.E.2d 394, 396 

(1998) (quoting Karim v. Commonwealth, 22 Va. App. 767, 779, 473 

S.E.2d 103, 108-09 (1996) (en banc)), aff'd per curiam, 258 Va. 

1, 516 S.E.2d 219 (1999). Thus, a default in the requisite 

"notice of the initiation of juvenile proceedings" renders "the 

transfer of jurisdiction" "ineffectual and the subsequent 

convictions . . . void." Id. at 315, 504 S.E.2d at 399. 

 In 1996, the General Assembly enacted Code § 16.1-269.1(E), 

which provides that "[a]n indictment in the circuit court cures 

any error or defect in any proceeding held in the juvenile court 

except with respect to the juvenile's age." Thus, "under the 

plain language of [Code § 16.1-269.1(E)], an indictment by a 

grand jury cures any defect or error, except one regarding 

 2

 Although inapplicable to the subject prosecutions, the 

1999 session of the General Assembly amended Code § 16.1-263(A), 

substituting "the parents" with "at least one parent." 

 

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[defendant's] age, which . . . occurred in [the J&D court] 

proceeding," including the Commonwealth's failure to comply with 

statutory notice requirements. Moore v. Commonwealth, ___ Va. 

___, ___, ___ S.E.2d ___, ___ (2000). "[T]he provisions of Code 

§ 16.1-269.1(E) apply only to offenses committed on or after 

July 1, 1996," and, though inapplicable to the Baker and Karim

crimes, both committed prior to the effective date, id. at ___, 

___ S.E.2d at ___, clearly cure any deficiency in notice to 

defendant's mother arising from the subject J&D court 

proceeding. See id.; see also Carter v. Commonwealth, 31 Va. 

App. 393, 394-95, 523 S.E.2d 544, 544-45 (2000). 

III. Cross-examination 

 During cross-examination of Commonwealth witness Larry 

Brooks, defendant's counsel began inquiry into the collective 

activities of defendant, the victim, Brooks, and his daughter on 

the day of the offenses, which, although unrelated to the 

crimes, established inconsistencies in the victim's earlier 

testimony. The Commonwealth objected, arguing that the evidence 

was "extrinsic evidence of a collateral matter," intended only 

to "impeach the witness," and inadmissible. Defendant countered 

that the testimony "directly relates to what [the victim] stated 

happened that day." The trial court sustained the objection and 

defendant did not pursue the issue further with the witness. 

Cross-examination of prosecution witnesses 

"is 'fundamental to the truth-finding 

process and is an absolute right guaranteed 

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to an accused by the confrontation clause of 

the sixth amendment.'" . . . 

 However, the defendant's right to 

cross-examine witnesses does not extend to 

collateral and irrelevant matters. A 

witness cannot be impeached by evidence of a 

collateral fact, which is not relevant to 

the issues of the trial, even though to some 

extent it has a bearing on the issue of 

credibility. 

Maynard v. Commonwealth, 11 Va. App. 437, 444, 399 S.E.2d 635, 

639 (1990) (en banc) (citations omitted). "'The test as to 

whether a matter is material or collateral, in the matter of 

impeachment of a witness, is whether or not the cross-examining 

party would be entitled to prove it in support of his case.'" 

Id. at 445, 399 S.E.2d at 640 (quoting Allen v. Commonwealth, 

122 Va. 834, 842, 94 S.E. 783, 786 (1918)). 

 Here, defendant does not contend that the proposed 

cross-examination of Brooks was probative of any matter in 

issue, save the victim's credibility, and the record does not 

suggest otherwise. To the contrary, defendant acknowledged that 

the questioning pertained only to the victim's recollection of 

events preceding the offenses, matters irrelevant to the issues 

before court and clearly collateral. The court, therefore, 

correctly precluded the cross-examination in contention. 

 Accordingly, we affirm the convictions. 

 Affirmed.

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