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State of Missouri, Respondent, v. Gordon Phillip Winrod, Appellant.

Decision date: Unknown

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Affirmed

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This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Southern District Case Style: State of Missouri, Respondent, v. Gordon Phillip Winrod, Appellant. Case Number: 24205 Handdown Date: 01/17/2002 Appeal From: Circuit Court of Ozark County, Hon. William F. Mauer, Special Judge Counsel for Appellant: Thomas D. Carver Counsel for Respondent: Karen L. Kramer Opinion Summary: None Citation: Opinion Author: PER CURIAM Opinion Vote: AFFIRMED. Shrum, P.J., Mongomery, J., and Barney, C.J. Opinion: AFFIRMED PER CURIAM.A jury convicted Gordon Phillip Winrod (Defendant) of six counts of the class D felony of child abduction for knowingly retaining six of his grandchildren under the age of seventeen in Missouri for thirty or more days without the consent of their legal custodians. Section 565.156(4).(FN1) The trial court sentenced Defendant to consecutive terms of five years' imprisonment on each of the convictions. This appeal followed. Defendant does not challenge the sufficiency of the evidence in support of his convictions. We view the evidence presented at trial in the light most favorable to the verdict and recite the facts accordingly. State v. Werner, 9 S.W.3d 590, 593 (Mo. banc 2000). Defendant's daughters, Quinta and Sharon, married brothers from North Dakota, Joel and Tim Leppert. Joel and Quinta's marriage produced five children. Tim and Sharon's marriage produced six children.

Defendant informed Sharon that he would no longer want anything to do with her if she continued to live in North Dakota with her husband and remained in contact with the Leppert family. Thereafter, the marriage deteriorated quickly. Tim returned home from work one day to find Sharon and the children gone. Sharon filed for divorce in Ozark County, Missouri. The divorce decree awarded Tim and Sharon joint custody of the children. Later, the decree was modified to award Tim sole custody with Sharon having no right to visitation. Joel and Quinta's marriage also deteriorated. Joel filed for divorce and was granted custody of all of their children. Quinta, like her sister, was denied any visitation with the children. Subsequently, Quinta also moved to Missouri to live with Defendant. Following their marital dissolutions and the denial of custody and visitation, Sharon and Quinta began to systematically take their children from their homes in North Dakota and move them to Defendant's house in Missouri. The first children were taken in September of 1994 when Tim Leppert was away from home. When Tim returned to the family home, four of his children, N.L., E.L., twelve-year-old D.L., and eight-year-old J.L., were missing.(FN2) Sharon had entered the home and taken the children. After hiding the children in North Dakota, Sharon eventually took them to Defendant's home in Ozark County, Missouri. A year later, Sharon took another of the children, five-year-old J.L., and also transported him to Missouri to live with Defendant. In September of 1995, Quinta entered Joel's home and took two of their children, eight-year-old S.L. and four- year-old M.L. Three months later, Sharon and Joel's brother, Mark Leppert, took another of Joel and Quinta's children, five-year-old T.L., from a mall parking lot in North Dakota. All three of these children also were taken to Defendant's home. Sharon, Quinta and Mark were all tried in North Dakota in connection with the takings of the children. They were each convicted of felonious restraint. Mark and Sharon were also convicted of aggravated assault in connection with the missing children. Quinta was convicted of burglary for her role in removing the children from Joel's home. Each was sentenced to a term in the North Dakota Department of Corrections (NDDC). While Sharon, Quinta, and Mark were under the supervision of NDDC, Defendant filed an application to accept phone calls from each of the convicts at his home phone number in Missouri. In compliance with regulations, NDDC officials monitored the phone calls. Defendant was heard to ask Quinta and Sharon, "Would you like to talk to someone special?" At that point a child would pick up the phone and say, "Hi, Mama." The conversations would often end with the child saying, "Bye, Mama." The children on the phone referred to Mark as "Uncle Mark." The tapes of these calls were forwarded to the FBI agent in charge of the missing children's cases. The children's fathers, Tim and Joel Leppert, were

able to positively identify the children's voices on the tapes. The taped telephone conversations, along with letters and photographs, established that the missing children were living with Defendant at his farm in Missouri. Furthermore, "The Winrod Letter," in the June 2000 issue, established that the children had been left with Defendant by their mothers and they had resided with Defendant for the past four years. Evidence showed that while the children lived on Defendant's property he taught them to hate their fathers and legal authorities. The children were taught to hide in the woods if anyone came on the property. In the event the house was surrounded, the children were to hide in an underground bunker. In September of 1996, FBI agents arrived at Defendant's farm. Defendant informed the agents that he knew nothing about the children and asked the agents to leave his property. The children hid in the bunker until the agents left. In May of 1997, an FBI agent and the Ozark County Sheriff went to Defendant's farm to discuss the children's whereabouts. Defendant ordered them off of his property. As the agent and the officer left, they noticed small footprints in the dust and gravel in front of Defendant's home. They also saw toys, bicycles and a sandbox. Based upon evidence that the missing children were on Defendant's property, a search warrant for the property and an arrest warrant for Defendant were issued. On May 17, 2000, Defendant, his son Steven, and his daughter Carol were all arrested on the Defendant's property. The children barricaded themselves inside the house. Defendant informed officers of the Missouri Highway Patrol that the children would be better off dead than to leave the farm and be returned to their fathers. Ultimately, the children were taken from the home and transported to the juvenile facility in Mountain Grove, Missouri. A search of the property turned up photos of the children taken on Defendant's farm dating back to 1997. Defendant was charged with six counts of the class D felony of child abduction. After a jury trial on the matter, Defendant was convicted of all six counts of child abduction and sentenced to five years' imprisonment on each count with the sentences to be served consecutively. Defendant appeals. Here, Defendant presents two primary allegations of trial court error. First, Defendant contends the trial court erred in denying his request for issuance of writs of habeas corpus to compel the attendance of out-of-state witnesses on his behalf. Defendant next complains that the trial court erred in failing to maintain a position of neutrality during the trial and in communicating the court's belief in Defendant's guilt to the jury. We begin by addressing the numerous allegations of error presented under Defendant's Point I. Defendant first complains that the trial court abused its discretion in denying his request for the issuance of writs of habeas corpus to

compel the attendance of several out-of-state witnesses. Defendant then maintains the trial court erred in failing to sua sponte compel the attendance of these witnesses under the provisions of the Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings , sections 491.400 through 491.450 (Uniform Law). Finally, Defendant alleges the trial court erred by failing to take "steps to appoint counsel over Defendant Winrod's objection and [making] no attempt to take minimal steps to secure favorable testimony" for Defendant.(FN3) These contentions have no erit. On December 28, 2000, Defendant filed a "Request" with the trial court that provided: Here is [a] request for Habeas Corpus Writs for trial defense witnesses: Mark Leppert, Quinta Leppert, Sharon Leppert, [D.L], and [S.L.], all incarcerated in North Dakota, and are all necessary withnesses. In addition, 25 subpoenas are requested for additional defense witnesses. The trial court treated the document as a request for writs of habeas corpus ad testificandum and overruled Defendant's request.(FN4) The granting of such a writ falls within the trial court's discretion and should only be issued with strict proof of the materiality of the testimony and the necessity of the attendance of the prisoner as a witness. Laws v. O'Brien, 718 S.W.2d 615, 618 (Mo.App 1986). The trial court suggested that if Defendant wanted those witnesses to testify, he must make arrangements, at his expense, to take their depositions prior to trial to establish the necessity of their live testimony. Defendant counters that the "Request" provided sufficient information to require the trial court to issue the writs. We disagree. In a similar case, State v. Nichols, 781 S.W.2d 244, (Mo.App. 1989), the defendant maintained the trial court erred in refusing to issue a writ of habeas corpus ad testificandum to compel the presence of a witness who was an inmate housed in Arkansas. This court disagreed, noting that "'[p]rocess issued out of the courts of the State of Missouri does not have extraterritorial power'" and the defendant had made no effort to obtain the presence of the witness through the proper process, specifically the Uniform Law. Id. at 245 (quoting State v. Ivory, 609 S.W.2d 217, 220 (Mo.App. 1980)). This court also noted that the defendant failed to obtain the deposition of the Arkansas witness pursuant to Rule 25.12. Id. The court concluded, "It was not the obligation of the trial court to produce witnesses for the defendant." Id. The instant case is factually indistinguishable from Nichols. Defendant used improper means to secure the presence of his witnesses by failing to request the trial court to invoke its powers under the Uniform Law. Defendant requested a writ of habeas corpus and nothing more. The witnesses did not testify because of Defendant's error, not that of the trial court.

"'Pro se parties are bound by the same rules of procedure as parties represented by lawyers, and are not entitled to indulgences they would not have received if represented by counsel." Murphy v. Shur, 6 S.W.3d 207, 208 (Mo.App. 1999) (quoting Belisle v. City of Senath, 974 S.W.2d 600, 601 (Mo.App. 1998)). While this court acknowledges the problems faced by pro se litigants, we cannot relax our standards for non-lawyers. Hardin v. State, 51 S.W.3d 129, 131 (Mo.App. 2001). Defendant faults the trial court for not overlooking his mislabeled "Request" and failing to sua sponte compel the attendance of the out-of-state witnesses pursuant to the provisions of the Uniform Law. However, even if the trial court had deemed it appropriate to act sua sponte to aid Defendant in securing his witnesses pursuant to the Uniform Law, Defendant's "Request" presented insufficient evidence as to the materiality and necessity of such witnesses. According to the requirements of the Uniform Law, the burden is on the party seeking the presence of the witness to establish that such testimony is material and necessary. State v. Moore, 882 S.W.2d 253, 268 (Mo.App. 1994). The party should present evidence by affidavit of the witness or in some other way establish the materiality and necessity of the testimony. Id. "Even when a showing of materiality and necessity is made, the granting of the application is largely within the discretion of the trial court, fo

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