DeROSA v. FIRST JUDICIAL DISTRICT COURT, 31666 (Nev. 12-14-1999)

JEFFREY DeROSA, Petitioner, vs. THE FIRST JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR CARSON CITY, AND THE HONORABLE MICHAEL E. FONDI, DISTRICT JUDGE, Respondents, and THE STATE OF NEVADA, Real Party in Interest. JANICE LOUISE THOMAS, Petitioner, vs. THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE, AND THE HONORABLE MILLS LANE, DISTRICT JUDGE; AND THE MUNICIPAL COURT OF THE CITY OF RENO, COUNTY OF WASHOE, STATE OF NEVADA, AND THE HONORABLE PAUL S. HICKMAN, MUNICIPAL COURT JUDGE, Respondents, and THE CITY OF RENO, NEVADA, Real Party in Interest.

Nos. 31666, 32319.Supreme Court of Nevada.
December 14, 1999.

BEFORE ROSE, C.J., YOUNG, MAUPIN, SHEARING, AGOSTI, LEAVITT, BECKER, JJ.

ORDER DENYING REHEARING AND AMENDING OPINION
Petitioners DeRosa and Thomas have requested rehearing of their petitions, which were resolved in DeRosa v. District Court, 115 Nev. 225, 985 P.2d 157 (Adv. Op. No. 33, August 27, 1999). Further, on October 4, 1999, petitioner DeRosa filed a motion to consolidate these matters. Cause appearing, we grant DeRosa’s motion. Having reviewed the petitions for rehearing, we have determined that rehearing is not warranted. See NRAP 40(c).

Additionally, Thomas has filed a motion to correct alleged factual error and negative reference to petitioner’s counsel in this court’s opinion. We grant in part and deny in part Thomas’s motion.

Thomas complains of two references to counsel in this court’s opinion. First, Thomas argues that this court erred in stating that counsel for Thomas waived her right to confront and cross-examine witnesses by failing to object in writing to a lab analyst’s affidavit. The relevant portion of this court’s opinion reads as follows:

Trial counsel may effectively waive a defendant’s statutory rights. Here, counsel for DeRosa and Thomas did so by failing to argue that there was a substantial and bona fide dispute of fact regarding the use of the phlebotomists’ declaration and affidavit and the evidence technician’s affidavit, and by failing to object in writing to the use of the lab analyst’s affidavit. See NRS 50.315(6); NRS 50.320(3).

Adv. Op. at 14. Thomas recognizes that this court had indicated in the facts section of the opinion that Thomas’s counsel had objected in writing prior to trial and that the city was forced to call the lab analyst to testify. See Adv. Op. at 4.

The sentence quoted above, however, groups together whatboth petitioners’ counsel did that resulted in a waiver of petitioners’ statutory confrontation rights. The reference to a failure to object to the lab analyst’s affidavit was a reference to DeRosa’s counsel. For the sake of clarity, we have nevertheless decided to amend the opinion. We direct the clerk of this court to delete the second sentence quoted above, beginning with “Here, counsel for DeRosa and Thomas,” and to replace the sentence with the following language:

Here, counsel for DeRosa did so by failing to argue that there was a substantial and bona fide dispute of fact regarding the use of the phlebotomist’s declaration and the evidence technician’s affidavit, and by failing to object in writing to the use of the lab analyst’s affidavit. See NRS 50.315(6); NRS 50.320(3). Similarly, counsel for Thomas failed to argue that there was a substantial and bona fide dispute of fact regarding the use of the phlebotomist’s affidavit.

Thomas further complains that this court disparaged her counsel’s reputation by suggesting that counsel was ineffective and that petitioners should engage in post-conviction attacks on their convictions. Having reviewed Thomas’s claim, we decline to modify our discussion concerning the availability of post-conviction relief. The language in this court’s opinion does not impugn counsel’s abilities in any way.

Finally, in her original petition Thomas erroneously named Judge James Van Winkle as a respondent. We note, however, that Judge Paul S. Hickman was the municipal court judge who presided over Thomas’s trial. Accordingly, we direct the clerk of this court to amend the caption in this court’s opinion to conform to the caption appearing in this order.

It is so ORDERED.

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