Commonwealth v. Offutt

This case is before the Court on Defendant’s motion in limine to prevent the Commonwealth from introducing evidence of the contents of a bag allegedly belonging to Defendant given to the police by an unknown person.

As grounds for this motion, Defendant asserts, and it is agreed, that the bag was destroyed by the police after an improperly-addressed notice was sent concerning its release. Offutt argues that he has been deprived of the opportunity for counsel to examine the contents of the bag for cross-examination purposes and to determine if any of the evidence might be exculpatory. Offutt does not assert willfulness, nor does he request dismissal of the indictment.

Absent a showing that the evidence possesses an exculpatory value apparent before its loss, the motion must be denied.

In O’Dell v. Commonwealth, 234 Va. 672 at 684 (1988), the Supreme Court held that failure to properly preserve certain evidence in a refrigerated condition would not constitute a violation of defendant’s constitutional rights where defendant argued that testing of the evidence may have proven favorable to him. While Offutt seeks a lesser remedy than dismissal, the test is the same. Therefore, *329there being no showing of bad faith, deviation from normal practice, animosity toward accused, or conscious effort to suppress exculpatory evidence, the motion in limine must be denied.