We conclude that the trial court erred by denying the motion for a continuance on June 9 and forcing defendant to go to trial on June 14 because defense counsel had not had a reasonable period of time to prepare his defense for trial. Citing State v. Reese, 25 Or.App. 231, 234–35, 548 P.2d 998 (1976), the state argues that, because defendant was seeking a continuance to procure witnesses, he was required to show that the witnesses could be produced and that, if produced, they would testify to facts material to defendant's case. The state contends that, in this case, defendant gave only vague descriptions of the witnesses he sought and the information about which they would testify and failed to demonstrate that, if the continuance were granted, he could actually produce those witnesses.
A trial court need not consider a motion for a continuance unless a defendant makes a specific showing of good cause. State v. Reese, 25 Or App 231, 234, 548 P2d 998 (1976). Defendant claims that he showed good cause for the continuance because he was dissatisfied with his present attorney and had a right to counsel of his choice.
When a defendant in a criminal action moves for a continuance in order to procure the testimony of an absent witness, such a defendant must show that the testimony sought is material and admissible, that the witness could actually be produced, that the witness could be produced within a reasonable time, and that due diligence has been exercised before the request for a continuance. See, e.g., State v. Hartman, 101 Utah 298, 119 P.2d 112 (1941); State v. Freshwater, 30 Utah 442, 85 P. 447 (1906); State v. Reese, 25 Or. App. 231, 548 P.2d 998 (1976); People v. Dalton, 201 Cal.App.2d 396, 20 Cal.Rptr. 51, 95 A.L.R.2d 628 (1962). The defendant did not meet these requirements: his motion stated only that Tuning's testimony was "vital.
“[I]f a defendant seeks a continuance to procure witnesses, he must show that the witnesses can be produced and if produced, they will testify to facts material to the defendant's case.” State v. Reese, 25 Or.App. 231, 234–35, 548 P.2d 998 (1976). Defendant did not do so here. Cf. Ferraro, 264 Or.App. at 281, 331 P.3d 1086 (cautioning that in some instances, motion for continuance to investigate what witnesses will be necessary for defense will be sufficient).
The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. * * *'" State v. Reese, 25 Or. App. 231, 234, 548 P.2d 998 (1976) (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964)) (emphasis added). Here, counsel was not aware of the case until the afternoon before the hearing.
We review a ruling on a motion for continuance for abuse of discretion. State v. Reese, 25 Or. App. 231, 234, 548 P.2d 998 (1976); State v. Curtis, 20 Or. App. 35, 37, 530 P.2d 520 (1975). Defendant did not establish that the missing witness could be produced in the future; neither had he tried to compel the witness' attendance. Under the circumstances, there was no abuse of discretion.
State v. Wolfer, 241 Or. 15, 403 P.2d 715 (1965); State v. Young, 1 Or. App. 562, 463 P.2d 374, rev den (1970). As we stated in State v. Reese, 25 Or. App. 231, 234, 548 P.2d 998 (1976): " ' "* * * There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process.
Considering the nature of the article, the circumstances surrounding its preservation and custody and the likelihood of intermeddlers tampering with it, the "chain of custody" objection was properly overruled. State v. Anderson, supra; see State v. Reese, 25 Or. App. 231, 236, 548 P.2d 998, 1001 (1976). Defendant argues that the black bag and the cutting torch found inside it were irrelevant because they were not linked to the crime.