Reeves v. State ( 1985 )

ON APPLICATION FOR REHEARING

LEIGH M. CLARK, Retired Circuit Judge.

This case is before us on “APPLICATION FOR REHEARING & RULE 39(k) [A.R.A.P.] MOTION” and upon the brief in support thereof by counsel for appellant. The correction sought to be made by appellant is thus stated in appellant’s “PETITION FOR APPLICATION FOR REHEARING”:

“That the Court correct certain facts ... The facts referred to are set out in the sentence, ‘Furthermore, the door that was partly opened by Officer West was not a door to the house of defendant’s residence but a door to the front porch of the defendant’s residence, ...’

“The facts to be corrected are that the door was in fact fully opened by Officer West and that the screen door opened by him was in fact a screen door on the front entrance to the defendant’s residence.

“Appellant’s contention as to these facts [is] supported by Officer West’s statement, T went to the front door. The main door was open. The screen door was closed.’ (TR. p. 35). They are further supported by his statement, ‘I pulled the screen door open and stepped to the side in the doorway to where she could see it.’ (TR. p. 38).”

Our response to the request of appellant is that the only change we will make in the statement quoted from our opinion on original submission is that the adverb “partly” be deleted, as the evidence does not show that the screen door was “fully” opened by Officer West, as now contended in the application for rehearing, even though it is clear that said “screen door” was closed prior to the opening of it by Officer West.

In the brief of counsel for appellant in support of the application for rehearing, substantially the same argument is made that was made in the brief of appellant on original submission of the case, which was fully considered in our opinion.

OPINION EXTENDED IN RESPONSE TO RULE 39(k) A.R.A.P. REQUEST; APPLICATION FOR REHEARING OVERRULED.