                  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.


     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

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
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

                                  - 5 -
          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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