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 . . . ."
- 2 - 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
- 3 - 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."
- 4 - [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
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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 . . . ."
- 2 - 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
- 3 - 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."
- 4 - [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.
- 6 -