STATE of Louisiana v. Rickey LANDRY . Supreme Court of Louisiana . Sept. 3, 1980 . Rehearing Denied Oct. 6, 1980 . William J. Guste, Jr. , Atty. Gen., Barbara Rutledge , Asst. Atty. Gen., J. Nathan Stansbury , Dist. Atty., Ross Brupbacher , Asst. Dist. Atty., for plaintiff - appellee . Clement Story, III , Lafayette, for defendant - appellant . DIXON , Chief Justice. The defendant was convicted of second degree murder in violation of R.S. 14:30.1 , 1 and sentenced to serve life in prison without benefit of probation, parole or suspension of sentence for a period of forty years. On appeal, defendant urges eleven assignments of error. Testimony adduced at trial indicates that the defendant , along with two other white men, Vincent Gautreaux and Tim Darby , were at Romero's (or Rome's) Amusement Center on the afternoon of March 2, 1978 . Two black men, Charles Alfred and Randy Collins , attempted to enter the establishment but were confronted by the defendant , who told Collins that he could not bring the beer he was carrying into the building. A fight ensued between Collins and the defendant , which developed into a battle involving all five men. One of the white men brought out a knife, causing the black men to attempt to flee. Colins was not pursued, but Alfred was caught in the back yard of a nearby house by the defendant , who held him until the other two arrived. The three men then took turns stabbing Alfred with a knife, while the other two men held him. Alfred was able to escape for a brief moment, but was again caught and slashed in the face, either by the defendant or by Gautreaux. Alfred subsequently died of a knife wound to the heart. At trial, Mark Glynn testified that he saw the defendant slash the victim in the face. On cross-examination, defense counsel sought to impeach that testimony by reference to a statement by the witness given to the police indicating that Vincent Gautreaux , and not the defendant , had caused the wound on the victim's face. The trial court initially refused to allow counsel to continue, because it felt he had failed to lay a proper foundation and because he did not have a copy of the complete statement. The court issued a subpoena for the statement, and the prosecutor offered to provide a complete copy. When trial resumed the next day, defense counsel confronted the witness with the existence of the statement contradicting his testimony at trial. The witness admitted making the statement to the police, and explained that he had been confused the day before in court , and that the wound on the victim's face had been in fact inflicted by Gautreaux. In this assignment of error the defendant argues that the witness' statement was exculpatory evidence which was improperly withheld despite his pretrial request for all such material. Brady v. Maryland , 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 ( 1963 ) . Evidence that impeaches the testimony of a witness whose reliability may be determinative of guilt may fall within the Brady rule requiring the state to disclose material exculpatory evidence. Giglio v. United States , 405 U.S. 150 , 92 S.Ct. 763 , 31 L.Ed.2d 104 ( 1972 ) ; State v. Roussel , 381 So.2d 796 ( La. 1980 ) ; State v. Bailey , 367 So.2d 368 ( La. 1979 ) . In the instant case , however, it is doubtful that the statement given by Glynn to the police had any exculpatory value prior to trial, since it was not until the witness had testified in a conflicting manner at trial that the value of the statement for impeachment came into existence. Even if, for purposes of argument, some exculpatory value be attributed to the evidence, it cannot be said to have been suppressed by the state , since it was made available to the defendant for use at trial. See State v. Reed , 378 So.2d 923 ( La. 1979 ) . In addition, although this court has noted that the late disclosure, as well as the nondisclosure, of exculpatory evidence can so prejudice a defendant that he is deprived of his constitutional right to a fair trial ( State v. Roussel , supra ; State v. Manning , 380 So.2d 46 ( La. 1980 ) ) , there was no such deprivation in the instant case . The record indicates that the defendant had ample opportunity to use the prior statement for impeachment purposes, and in fact did so in a thorough manner. The impeaching material was effectively presented to a jury. The record does not reflect that the defendant was prejudiced by the fact that he had to delay impeachment from the end of one day to the beginning of the next. In a similar vein, the defendant contends that the state also suppressed the fact that a state witness had been arrested in connection with the offense, a fact which the defendant argues would have been useful in impeachment of the witness. To show that the witness had been arrested the defendant relied on a document purporting to be a form listing and waiving the "Rights of an Arrestee or Suspect." The document does not specify whether the witness was arrested or simply questioned as a suspect. And, as in the case of the statement given by Mark Glynn , the record indicates that the form was actually used at trial, and any exculpatory value it may have had was actually put before the jury. The record fails to show any prejudice whatsoever from the failure of the state to provide the defendant with the information involved. The defendant was therefore not deprived of his right to a fair trial. In addition, the defendant 's contention that the state had several statements in its possession that might have been exculpatory, and that the defendant should have been given those statements, has no merit. The defendant has failed completely to show that any such statements existed, or that any such statements were material to the case and exculpatory. Brady v. Maryland , supra ; United States v. Agurs , 427 U.S. 97 , 96 S.Ct. 2392 , 49 L.Ed.2d 342 ( 1976 ) . In these assignments the defendant cites numerous instances in which he claims the prosecutor made improper remarks. 2 Before the start of the defendant 's trial, when numbers were being called from the docket, one of the assistant district attorneys present inquired, in a low voice, "Is this the Receiving Stolen Goods?" The statement was made in the presence of the general venire that had been called for trial, but it is unclear if any of its members heard the remark. The defense moved to dismiss the entire venire, apparently on the grounds that the defendant had been prejudiced by the prosecutor 's remark. The defendant declined to question the prospective jurors to determine if they had in fact heard the remark, and also declined the court 's offer to instruct the venire to disregard the remark. On the record before us it was not error for the trial court to deny the defendant 's motion to dismiss the entire venire. The trial court , in discussion out of the presence of the venire, indicated that it did not believe that any member of the venire had heard the remark, and that, if any member had heard the remark, it did not believe he would have connected the question to the defendant . The small likelihood of prejudice was recognized by the defendant when he declined the opportunity to prove any prejudice or to have the venire instructed. Therefore, the record does not reflect any prejudice to the defendant that would require the dismissal of the entire venire. In another instance cited by the defendant , the following discussion took place after the defendant had presented his evidence: "BY MR. STORY: Your Honor, at this time the defense will rest. BY THE COURT : ANY REBUTTAL? (INAUDIBLE STATEMENT BY MR. BRUPBACHER) BY MR. STORY: OBJECTION. BY THE COURT : You need five minutes now? BY MR. BRUPBACHER: No, sir. Well, that is a surprise, Judge. BY THE COURT : ANY REBUTTAL? BY MR. BRUPBACHER: No rebuttal by the State , Your Honor." The trial then proceeded in its normal course. The defendant claims that, where the transcript indicates an inaudible statement was made, the prosecutor in fact said, "Your Honor, we are surprised. I thought he had more evidence than this." In brief to this court the state concedes that some such statement was made, but it was not in fact heard by the jury. Even if it is assumed that the contrary is true, the record before us does not present reversible error. The remark made by the prosecutor does not fall within the grounds for a mandatory mistrial under C.Cr.P. 770 , nor did the statement amount to conduct making it "impossible for the defendant to obtain a fair trial" such as would be grounds for a mistrial under C.Cr.P. 775 . In fact, the statement does not appear to have been an attempt by the prosecutor to comment on the defendant 's evidence (or the lack of it) , but was rather made in a procedural context as an explanation of the prosecutor 's momentary indecision as to whether to put on any rebuttal evidence. In addition, even if the remark is construed as a comment on the defendant 's evidence, the defendant was not unduly prejudiced thereby. C.Cr.P. 774 provides that argument can be directed to the lack of evidence on any issue. This court has held that it is proper for a prosecutor to comment on the defendant 's failure to controvert or rebut the state 's case. State v. Sims , 346 So.2d 664 ( La. 1977 ) ; State v. Reed , 284 So.2d 574 ( La. 1973 ) . It was not unduly prejudicial to the defendant that, as an incident to a procedural colloquy between the court and the prosecutor , the jury's attention was attracted to a matter that could properly have been argued to it by the prosecutor . Another claim made by the defendant involves the defense cross-examination of Randy Collins , who had been involved in the fight which ultimately resulted in the killing. The witness testified that the victim had struck one of the white men with a cane, but he could not be certain that it was the defendant who had been hit. Defense counsel nevertheless assumed, for purposes of further ... 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State United States Mississippi Supreme Court June 18, 2015 ...probative value of the photographs against their prejudicial effect.” State v. Lindsey, 404 So.2d 466, 475 (La.1981) (citing State v. Landry, 388 So.2d 699 (La.1980) ; State v. Gilmore, 332 So.2d 789 (La.1976) ). However, the Lindsey Court went on to write that “the state cannot be robbed o...... Mississippi Supreme Court State v. Griffin United States Court of Appeal of Louisiana May 5, 1993 ...(La.App. 2d Cir.1989). Once that foundation is established, the weight to be given the evidence is a question for the jury. State v. Landry, 388 So.2d 699 (La.1980) , cert. denied, 450 U.S. 968, 101 S.Ct. 1487, 67 L.Ed.2d 618 Multiple access to an evidence locker is not the sort of break in ...... Court of Appeal of Louisiana State v. Declouet United States Court of Appeal of Louisiana October 12, 2010 ... ... Prudholm, 446 So.2d 729, 738 (La.1984)). Late disclosure as well as non-disclosure of exculpatory evidence may deprive the defendant of a fair trial. Kemp, 00-2228 at 7, 828 So.2d at 545 (citing State v. Williams, 448 So.2d 659, 665 (La.1984); State v. Landry , 388 So.2d 699, 702 (La.1980), cert. denied, 450 U.S. 968, 101 S.Ct. 1487, 67 L.Ed.2d 618 (1981); State v. Roussel, 381 So.2d 796, 798 (La.1980)). Brady and its progeny do not establish a general rule of discoverability, and not every case in which it is discovered post-trial ... ... Court of Appeal of Louisiana October 12, 2010 96-367 La.App. 5 Cir. 5/28/97, State v. Pendelton United States Court of Appeal of Louisiana May 28, 1997 ...the object from the time it was seized to the time it was offered in evidence. State v. Sweeney, 443 So.2d 522 (La.1983); State v. Landry, 388 So.2d 699 (La.1980) , cert. denied, Landry v. Louisiana, 450 U.S. 968, 101 S.Ct. 1487, 67 L.Ed.2d 618 (1981); State v. Kelson, 94-263 (La.App. 5 Cir....... Court of Appeal of Louisiana