Motion To Quash Indictment - Rio Arriba County

FIRST JUDICIAL DISTRICT
COUNTY OF RIO ARRIBA
STATE OF NEW MEXICO

No. RA 99-842 (CR)
RA 99-843 (CR)

STATE OF NEW MEXICO,
Plaintiff,
vs.
MARK RENDLEMAN and TIFFANY MIA BARBOSA,
Defendants.

MOTION TO QUASH INDICTMENT

Defendant Mark Rendleman (Mr. Rendleman) and Tiffany Mia Barbosa (Ms. Barbosa) respectfully request the Court to quash the indictment brought against them in this cause. The grounds for this motion are violation of Article II, Sec. 14 of the New Mexico Constitution; violation of the Fifth and Fourteenth Amendments of the United States Constitution; and violation of NMSA 1978, Sec. 31-6-1 et seq.
Due to the nature of this motion, concurrence by opposing counsel has not been sought. A Memorandum in Support of Motion to Quash Indictment is being filed contemporaneously with this motion.

WHEREFORE, Mr. Rendleman and Ms. Barbosa respectfully request that this Court enter an Order to Quash the Indictment in this cause.

MEMORANDUM IN SUPPORT OF MOTION TO QUASH INDICTMENT

Introduction.
The Indictments in these cases charge Mark Rendleman, a nationally known artist and art professor, and his daughter Mia Barbosa with sexual exploitation of children and criminal sexual contact of a minor solely because of photographs taken by Mr. Rendleman and Ms. Barbosa. The photographs are of three children, one of whom is Mr. Rendleman's daughter and two others who are Ms. Barbosa's brother and sister who have been in the care of Ms. Barbosa and Mr. Rendleman. The indictments must be quashed because numerous irregularities and improprieties occurred during the presentment of this case to the Rio Arriba County grand jury.
Facts.
Mark Rendleman is a 49 year old man who has been a resident of Santa Fe virtually his entire life. In 1975, he fathered a child with Elizabeth Stewart. That child, Mia Barbosa, is a co-defendant in this case. Mr. Rendleman and Ms. Stewart were never married. They never lived together. With the exception of the evening when Mia was conceived, they never carried on a romantic relationship. Ms. Stewart had other children with other men in her life. Two of those children, Kelley Stewart and Kenny Stewart, are alleged victims in this case. In May of 1998, Ms. Stewart's psychological condition deteriorated significantly. Predictably, as Elizabeth Stewart's plight worsened, her children stopped thriving. The bottom fell out of their grades in school. They were not cared for in the most basic of ways. She finally reached the point where she was unable to care for Kenny and Kelley. At the time, the Stewarts were all living in California.
When Mia learned of her mother's attempted suicide and precarious emotional condition, she immediately drove to California. At Ms. Stewart's request, Mia brought Kenny and Kelley Stewart with her back to Santa Fe and cared for them as though they were her own children. At the time, Kenny was 13 years old and Kelley was 12 years old. Over the course of the past two years, Elizabeth Stewart has bounced in and out of psychiatric facilities on multiple occasions. During that time, Ms. Stewart became destitute and filed for bankruptcy for a second time.
Mia's intervention was a God send for Kenny and Kelley. Mia brought them into her home in Santa Fe. She and her husband provided for Kenny and Kelley out of their own pockets. Mia enrolled the children into the Capital Christian School in Santa Fe. Their grades improved dramatically. Kenny and Kelly flourished under Mia's loving care and consistency.
Mark Rendleman also received Kenny and Kelley as his own. They spent a considerable amount of time with Mark and his daughter, Scarlet. Kenny and Kelley regarded Mr. Rendleman as their father and referred to him as "Dad". They gave Mr. Rendleman cards on father's day in which they referred to him as "Dad" in their own handwriting.
Mark Rendleman is a nationally known artist and art professor. He graduated from the New Mexico Military Institute in Roswell, New Mexico and received a B.A. in Art and Psychology from the University of Washington in 1972, and a Master of Fine Arts degree in Painting and Drawing from the University of California at Santa Barbara in 1974. His academic awards included a University of California Regent's Fellowship, a NMMI Regent's Scholarship, the Lambda Rho Scholar Award, the Award of Merit in Art, the Walter F. Isaac Memorial Scholarship, the Bausch & Lomb Award for work on visual perception, the Gunther Prize for a paper on visual illusions, the Student Rotarian of the Year award, and the Outstanding Science Student Award. At NMMI, he was named president of his junior and senior classes and president of the local chapter of the National Honor Society.
Mr. Rendleman has been an assistant art professor at California State University at San Diego and at Middlebury College in Vermont. He was a teaching assistant in the art departments at the UCSB and taught introductory classes in basic photography and painting at the University of Washington. He has been a guest lecturer at the University of Arizona, Texas Christian University, the University of California, the University of Washington, Southwestern University and Western Carolina University.
Mr. Rendleman grew up in an environment in which the human body was considered a creation of and gift from God, and nudity was not something to be ashamed of. In the 1940's and 1950's, Mr. Rendleman's mother posed as a nude model for sculptors and photographers. Consistent with that upbringing, Mr. Rendleman was also a nude model and for many years a practicing nudist. He has incorporated that sensibility into his art work.
In 1981, Mr. Rendleman gave up his career as an art professor. He moved back to New Mexico to care for his ailing parents, both of whom passed away by 1993. Since moving back to New Mexico, his work mostly has entailed his art project in Embudo, stock and bond trading and real estate investment and development.
In the late 1980's, Mr. Rendleman bought land in Embudo and built a house there. Adjacent to the house, which is built into the side of a hill made of volcanic ash, Mr. Rendleman has constructed a labyrinth of tunnels and rooms. This intricate and unique environmental sculpture spans over an acre and is considered a living work of art. It has been publically acclaimed. Many artists from around the world have come to the caves to do murals, create sculptures, and offer installations of various media. For many years, Mr. Rendleman has also used the site to host annual benefits for various charities.
Mark has always believed strongly that he should record events in his children's lives for their future benefit. He has taken thousands of photographs and done many hours of video with the intention of giving the photographs and videotapes to his children. When Kenny and Kelley came into his life, Mark made videos and took photographs of them as though they were his own children.
Mark Rendleman maintains a residence in both Santa Fe and Embudo. As previously mentioned, Mark was a practicing nudist and model for many years. Several of his neighbors in Embudo are practicing nudists, as well. Mark frequently took photographs of his children and of Kenny and Kelley. In some of these photographs, although the percentage relative to the total number of photographs taken was small, were photographs of the children nude. There were also many occasions when the children, including Kenny and Kelly, were playing various games of their own choosing and design during which they asked Mark to take videos of them. Some of these times they were nude. When the children were nude, it was always by their own choice. When taken in the context of the total amount of video footage shot, the amount of nudity was small. Likewise, when placed in context, the percentage of nude photographs taken of the children was small. On no occasions were the children videotaped or photographed in any depictions of sexual acts.
The chief subject of the activity that forms the basis of the indictments in this cause is a series of photographs known as the "cave man shoot." To understand the "cave man shoot", it is first necessary to have an understanding about the caves on Mark's Embudo property.
Mark Rendleman bought some property in Embudo, New Mexico, in 1986. The land where the Embudo property is located is comprised of volcanic ash that was deposited during volcanic eruptions many centuries ago. Over time, the volcanic ash has turned into a fine white sand. Mark built his Embudo house into the side of a hill that is comprised of the volcanic ash sand. The northern wall of his house, therefore, is actually part of the side of the hill. Starting over ten years ago, Mark began to dig an intricate labyrinth of passageways and rooms into the side of the hill. Mark accomplished this artistic and architectural feat by digging into the sandy hill using picks, shovels, and his own hands to excavate the passageways and rooms. The product of this project has come to be known as "the caves". The caves have been the subject of television documentaries and printed articles in the media. Artists from around the world have come to the caves to make artistic contributions. The caves contain dozens of pieces of important art work from numerous artists.
In the summer of 1995, the cave man shoot occurred. It was the only photo shoot that Mr. Rendleman staged with the children. Most of the shots had been previously planned. The cave man shoot is comprised of a series of artistically posed photographs in which Mark, Kenny and Kelley are all in the nude. In keeping with the caveman theme, Kenny and Kelley wore long-haired wigs. At that time, Mark's hair was naturally long. Several dozen posed photographs were taken in the caves. None of the human subjects in any of the caveman shoot photographs were wearing any clothing. None of the caveman shoot photographs depicted any sexual acts. Mark's penis was not erect in any of the photographs in which he was a subject. The caveman shoot photos comprised the largest category of exhibits submitted to the Rio Arriba County Grand Jury as evidence of criminal activity.
The authorities executed search warrants on Mark's homes in Santa Fe and Embudo in early October of 1999. The vast majority of the items taken as evidence were either videos or photographs. Some of the videos and photographs were taken in Santa Fe County, some in Rio Arriba County. The vast majority of the evidence seized by the police is not alleged to constitute any crime. There is no material difference in the nature of the videos and photographs in Santa Fe County and Rio Arriba County.
The District Attorney's Office presented their case to the Santa Fe County Grand Jury on October 14, 1999. The D.A.'s office proposed a 27 count indictment to the Santa Fe County Grand Jury for consideration. A sergeant from the Santa Fe Police Department, an investigator from the D.A.'s Office, Kenny Stewart and Kelley Stewart all testified. Kenny and Kelley testified after the other two witnesses. The Santa Fe County Grand Jurors asked Kenny and Kelley over two dozen questions about the circumstances surrounding the videotaping and photographing in which they participated. Kelley testified that all the children had a choice as to whether they had their clothes on or off and that they never asked Mark not to film them. She also testified that the theme movies that were filmed were their ideas, and done at their request. At the conclusion of the testimony, the Santa Fe County Grand Jury found no probable cause of any crime in 25 out of the 27 charges presented to it by the District Attorney's Office and dismissed those charges. The 25 were all charges relating to photos and videos with Kenny, Kelley and Scarlet. Only photos of Scarlet were not dismissed.
Apparently dissatisfied with the result of the Santa Fe County grand jury proceedings, the District Attorney's office took a different and more radical approach to presenting the case to the Rio Arriba County Grand Jury on October 22, 1999. They did not bring the three most important witnesses - Kenny, Kelley and Scarlet - to testify. Instead of presenting the first-hand, eyewitness testimony of those alleged to be victims, two professional witnesses - an FBI agent and an investigator from the D.A.'s office - were called to testify about their second-hand, hearsay observations. In the Santa Fe County grand jury proceeding, the prosecutor carefully and properly stopped Kenny from testifying about Rio Arriba allegations because they were not relevant to the Santa Fe County proceedings. In the Rio Arriba County grand jury proceedings, the prosecutor carefully led the FBI agent through a line of questioning, the answers to which almost exclusively related to: a) matters from Santa Fe County that the Santa Fe County grand jury had already found did not constitute criminal activity; and b) information that was totally irrelevant to either grand jury proceeding, but was of a highly prejudicial nature. The questioning and subsequent answers made Mark out to be monster who was perverted in every possible way, from his sexual practices to his religion. At no time during the FBI agent's testimony did the prosecutor ask questions to elicit the fact that the Santa Fe County grand jury found no evidence of crime in any of the countless Santa Fe matters testified to by the agent. Much of the testimony clearly was contrary to the recorded testimony of the children. Without the testimony of the children to exonerate Mark and Mia, the Rio Arriba County grand jury charged Mark with 30 felonies and Mia with 20 felonies.
As a result of the caveman shoot photographs, Mark Rendleman and Mia Barbosa were charged with multiple counts of sexual exploitation of children and criminal sexual contact of a minor and one count of child abuse. The sexual exploitation of children counts related to the fact that the nude photographs involving the children were taken. The criminal sexual contact of a minor charges were lodged as a result of the "totem pole" poses that were done during the caveman shoot.
The totem pole poses involved Mark, Kenny and Kelley. In the totem pole poses, Mark was standing upright, with his feet spread apart approximately 18 inches. Kenny was crouched below Mark, between his legs. Kelley was sitting on Mark's shoulders. All three were facing the camera. The criminal sexual contact of a minor charges as they relate to Kelley are due to the fact that Kelley's crotch was presumably touching Mark's neck while she was sitting on his shoulders. The criminal sexual contact of a minor charges, as they relate to Kenney, were lodged because Mark's crotch presumably rested on the top of the wig that Kenny was wearing during these poses. All of the criminal sexual contact of a minor charges in the Rio Arriba County indictment relate to the totem pole poses.
The remaining sexual exploitation of children charges relate to other photographs that were taken of Kenny, Kelley and Scarlet Rendleman, Mark's natural daughter. As previously indicated, Mark recorded various events of his children, and Kenny and Kelley, by taking photographs and videotapes. During the course of taking the photographs, sometimes photographs were taken of the children when they had some or all of their clothes off. The percentage of photographs taken of the children when they were totally or partially without clothing was small when taken in the context of all the photographs that were taken of the children. It was not a case of Mark taking whole roles of film of the children without their clothes on. Occasionally, on some of the hundreds of roles of film that were taken, occasional shots of the children without clothing would appear. It is these occasional photographs of the children with some or all of their clothing off that form the basis of the remaining sexual exploitation of children charges.
Finally, Mark and Mia are each charged of one count of child abuse. The State's theory behind the child abuse charges is that the taking of the photographs earlier described constituted child abuse.
In all, Mark Rendleman was charged with 18 counts of sexual exploitation of children, 11 counts of criminal sexual contact of a minor and one count of child abuse. Mia Barbosa was charged with 8 counts of sexual exploitation of children, 11 counts of criminal sexual contact of a minor and one count of child abuse.

Argument.
Article II, Section 14 of the New Mexico Constitution provides, in pertinent part, that "no person shall be held to answer for a Capital, Felonious or Infamous crime unless on a presentment or incident of a grand jury...". This constitutional guarantee has been held to be mandatory. State v. Chacon, 62 N.M. 291, 309 P.2d 230 (1957).
The two basic duties of a grand jury are described in Rule 14-8001, NMRA 1999 (UJI). One is "to investigate the matter for which [it is] called to determine from the evidence if there is probable cause to believe that an offense has been committed." Id. This function is balanced, however, by the grand jury's concomitant "duty to protect citizens against unfounded accusations whether they come from the government or others, and to prevent anyone from being indicted through malice, hatred or ill will." Id.

Historically, [the grand jury] has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.

Wood v. Georgia, 370 U.S. 375, 390 (1962).
The grand jury "should not be used as a shortcut tool to find probable cause." State v. Sanchez, 95 N.M. 27, 618 P.2d 371 (Ct. App. 1980). While the grand jury should not be subjected to undue interference in its process, see Buzbee v. Donnelly, 96 N.M. 692, 702, 634 P.2d 1244, 1254 (1981), the grand jury cannot be the "tool of the prosecuting authority to manipulate at will." Davis v. Traub, 90 N.M. 498, 500, 565 P.2d 1015, 1017 (1977) (Per Curiam). The New Mexico Supreme Court has also expressed its intention that it "will not permit anyone to circumvent the letter or spirit" of the grand jury laws. Id.
Grand jury practice in New Mexico is governed by NMSA 1978, Section 31-36-1 et seq. A grand jury hearing, by design, is secret and very restrictive in nature. Testimony is required to be taken in private. No persons are permitted to be in the grand jury hearing during the presentation of testimony, except for the prosecutor, interpreters, court reporters, security officers and the witness. Only if a target testifies is his attorney permitted to be in the grand jury room. Even under those circumstances, the target's attorney is prohibited from speaking audibly or otherwise participating in the proceeding. NMSA 1978, Section 31-6-4 (C). Since an accused has no rights with respect to grand jury proceedings, except that the grand jury be duly empaneled and conducted according to law, the rights of the accused in that respect are to be rigorously protected. Baird v. State, 90 N.M. 667, 568 P.2d 193 (1977).
In sharp contrast to the extremely limited and perfunctory nature of a target's counsel at a grand jury hearing, the prosecutor is given certain responsibilities and wide latitude at grand jury proceedings. This latitude, however, is not unlimited. The chief function of a prosecutor at a grand jury hearing is to "assist" the grand jury with its function. NMSA 1978, Section 31-6-4 (B) and (C) and 31-6-7. The legislature recognizes the inherent potential for abuse in the one-sided grand jury process and requires that "[t]he prosecuting attorney shall conduct himself in a fair and impartial manner at all times when assisting the grand jury." NMSA 1978, Section 31-6-7. This requirement is grounded in the recognition that:

. . . the prosecutor is a public officer with duties quasi judicial in nature. His obligation is to protect not only the public interest but also the rights of the accused. In the performance of his duties he must not only be disinterested and impartial but must also appear to be so.
State v. Hill, 88 N.M. 216, 219, 539 P.2d 236 (Ct. App. 1975). As has been repeatedly held, it is the duty of the prosecutor to protect the rights of the accused during a grand jury hearing. State v. Cruz, 99 N.M. 690, 662 P.2d 1357 (1983).
In this case, the prosecutor breached her duty of fairness and impartiality. The indictments must be dismissed in their entirety.
. The Presentment of the Case to the Grand Jury Resulted in Overreaching to Such a Degree that the Grand Jury Proceedings Were Subverted, Requiring the Indictment to be Quashed.
The Legislature has mandated that "[t]he prosecuting attorney shall conduct [her]self in a fair and impartial manner at all times when assisting the grand jury." NMSA 1978, Section 31-6-7. The Legislature has further mandated that "[t]he prosecuting attorney assisting the grand jury shall present evidence that directly negates the guilt of the target where [s]he is aware of such evidence." NMSA 1978, Section 31-6-11. The grand jurors themselves take an oath to "receive legal evidence." NMSA 1978, Section 31-6-6. The Grand Jury is constrained to find probable cause only from the "lawful evidence before it." Emphasis supplied. (NMSA 1978, Section 31-6-10.)
It is the responsibility of the prosecutor to assist the grand jury. It is the obligation of the grand jury to find probable cause upon "lawful" and "legal" evidence. The Rules of Evidence apply at a grand jury proceeding. NMRA 1999, Rule 11-1101B. ("these rules apply generally . . . to criminal proceedings . . .".) Since the grand jury is comprised of lay people and the prosecutor is an attorney, it is the responsibility of the fair and impartial prosecutor to present evidence to the grand jury that is admissible under the Rules of Evidence. The fact that the Rules of Evidence in New Mexico are intended to apply to grand jury proceedings can be ascertained by comparing Rule 11-1101(D) with the counterpart Rule 1101 of the Federal Rules of Evidence. Rule 1101(d)(a) specifies that the rules of evidence do not apply to grand jury proceedings. However, in adopting the New Mexico Rule, the Supreme Court expressly excluded the federal exception. Therefore, by applying the traditional rules of statutory construction and the rule of lenity, the rules of evidence are wholly applicable to New Mexico grand jury proceedings. Prosecuting attorneys are required to abide by the letter and spirit of the law in grand jury proceedings. Maldonado v. State, 93 N.M. 670, 671, 604 P.2d 363 (1979). It is against this backdrop that the courts have interpreted the propriety of grand jury practice in New Mexico.
Prosecutorial misconduct occurs when the prosecutor's conduct amounts to deceitful or malicious overreaching to such a degree that it subverts the grand jury proceedings. State v. Ballinger, 99 N.M. 707, 709, 663 P.2d 366 (Ct. App. 1983). To prevail on a motion to dismiss an indictment based on prosecutorial misconduct, the accused must show demonstrable prejudice. "Specifically, [the] defendant must show the conduct complained of infringed upon the independent judgment of the grand jurors and that the result would have been different had the conduct in question not occurred." (Citations omitted.) (State v. Hewitt, 108 N.M. 179, 184, 769 P.2d 92 (Ct. App. 1988). In this case, the actions of the prosecutor constituted the type of overreaching that infringed on the independent judgment of the grand jurors requiring dismissal of this indictment.
. The Hearsay Testimony of FBI Agent Matt McCulloch was Irrelevant, Prejudicial and Could Only Have Been Presented for the Purpose of Subverting the Grand Jury Proceedings.
The first witness to testify for the prosecution was FBI Agent Matt McCulloch. McCulloch's testimony was virtually all hearsay in nature. His testimony was comprised, nearly exclusively, of information that related to the Santa Fe County case that would not be admissible at trial in the Rio Arriba case. This is the same Santa Fe County case that was presented to the Santa Fe County grand jury eight days earlier. McCulloch did not testify before the Santa Fe County grand jury. The Santa Fe County grand jury dismissed 25 of the 27 counts presented to it, all 25 of which were similar to the Rio Arriba allegations. Yet, McCulloch testified liberally under the prosecutor's direction to the Rio Arriba County grand jury concerning the Santa Fe County allegations which had already been no-billed. Neither McCulloch nor any other witness advised the Rio Arriba County grand jury of the Santa Fe County grand jury's repudiation of the charges. McCulloch also provided hearsay testimony of a highly prejudicial nature concerning matters that did not relate to any contemplated charge in any jurisdiction and would not be admissible under the Rules of Evidence. The specific transgressions relating to McCulloch's testimony are chronicled as follows:1
) McCulloch testified on page 2 of his grand jury testimony that he received a telephone call from Elizabeth Stewart who said that she had evidence that her children, and possibly others, were being molested and video taped by Mark Rendleman. The only charge relating to an accusation of actual touching by Mr. Rendleman concerned a Santa Fe County incident with Kelley Stewart. There were no other credible allegations concerning child molestation by Mr. Rendleman. The video taping referred to all occurred in Santa Fe County. The only possible purpose of this irrelevant, hearsay testimony was to prejudice the grand jury into believing that Mr. Rendleman was a serial child molester who video taped his victims. This testimony had nothing to do with any of the charges presented to the Rio Arriba County grand jury.
) McCulloch testified on page 3 of his grand jury testimony about a video he saw in which Kenney, Kelly and Scarlet were "dancing in front of this video camera with umbrellas. They were singing a song. After a while they went into the closet and they came out nude, and you could just - no clothing. They were still continuing to dance and sing."
This part of McCulloch's testimony relates to a video tape that was shot in Santa Fe. The video tape to which he refers was presented to the Santa Fe County grand jury eight days earlier. The Santa Fe County grand jury found no probable cause to indict Mark Rendleman concerning this video and no-billed all counts that related to the video. This testimony had nothing to do with any proposed Rio Arriba County charge. This was a deliberate attempt to prejudice Mr. Rendleman and Ms. Barbosa with irrelevant information that another grand jury had already found did not constitute any crime.
) On pages 3 and 4 of his grand jury testimony, McCulloch stated that: "another portion of that video tape showed Kelley eating out of a dog bowl, I guess. Elizabeth explained that they liked to play this game called "dog". Kelley is wearing a T-shirt and blue underwear and she's eating out of this dog bowl. Then after a while Kelley will be crawling on her hands and knees, and the video camera is following her and she' crawling on her hands and knees. The majority of the time the focus is on her buttocks as she's crawling forward." Again, the section of video tape described by McCulloch was shot in Santa Fe and presented to the Santa Fe County grand jury, which found no probable cause to believe that the described footage constituted any crime. The Rio Arriba grand jury was not advised that the Santa Fe County grand jury had no-billed all charges related to this film footage. McCulloch's testimony was deliberately presented to prejudice the Rio Arriba County grand jury with irrelevant information. In point of fact, the game of "dog" is a game that was made up by the children and played by them at their own choice. McCulloch improperly implies that Mark made the children play the game, crawling around and eating out of dog bowls, somehow for his gratification.
) On page 4 of his grand jury testimony, McCulloch testified that: "In one portion of the same tape, Kenneth exposes his buttocks to the camera, spreads his buttocks. Kelly does the same." Again, this evidence relates to an occurrence that was video taped in Santa Fe, shown to the Santa Fe County grand jury, and no-billed. McCulloch also neglected to mention to the grand jury that the exposure of the children's buttocks to the camera was done voluntarily by them and not at the behest of Mr. Rendleman or Ms. Barbosa. The presentation of this evidence was deliberately done to prejudice Mr. Rendleman and Ms. Barbosa with irrelevant, prejudicial information that had already been found by the Santa Fe County grand jury not to constitute a crime.
) On page 4 of his grand jury testimony, McCulloch testified that "In another videotape it shows Mark Rendleman having sex several times in the same videotape with a girl that's, to this point, unidentified. They had a discussion about her being 17 years old, and also just kind of some of the problems that come with being 17." McCulloch neglected to mention that this video tape is nearly 30 years old and was taken when Mark, himself, was a young man. McCulloch also neglected to mention that absolutely nothing was illegal about the video tape or what it depicted. This testimony was deliberately presented to prejudice the grand jury against Mr. Rendleman by improperly implying that Mr. Rendleman was illegally having sex with underaged girls.
) On pages 4 and 5 of his grand jury testimony, McCulloch testified that: "And on a third videotape it shows two girls in different - in different portions of the videotape it'll show two girls. One girl was - Ms. Stewart was Jasmine. Now, Jasmine is the daughter of a lady named Deborah Davidson. When you see Jasmine on a videotape she looks like she's about 11 or 13. There's loud music playing in the background, there's a TV on. And Jasmine's wearing a sweatshirt and it looks like just underwear, and she's dancing much like, I guess, a stripper would in front of the video camera. And this goes on. Sometimes the focus centers on her - on her groin area, then it switches over to where you see - to - Elizabeth told me it was Mia at age 10." The video tape to which McCulloch referred was shot in Santa Fe, not Rio Arriba County. The film was over 14 years old. The film was shot at the request of Mark's daughters who made up their own script and wanted to do a "show" to have filmed. Nothing depicted in the film was illegal. The grand jury was not advised of this. The film did not relate in the slightest way to any charges presented to the Rio Arriba County grand jury. This irrelevant testimony concerning a 14 year old film taken in a different county was deliberately presented to the grand jury to prejudice Mr. Rendleman.
) On page 5 of his grand jury testimony, McCulloch testified about how Mr. Rendleman and another individual discussed the possibility of selling the previously mentioned film. Again, this testimony of McCulloch concerns a matter that occurred 14 years ago in Santa Fe County and had nothing to do with any charge being presented to the Rio Arriba County grand jury. In point of fact, the comment made by Mr. Rendleman was in jest. Mr. Rendleman has never sold the photographs or video tapes taken of his children to anyone. In addition, absolutely nothing depicted in the film described by McCulloch was pornographic or illegal in any respect. The irrelevant and prejudicial testimony provided by McCulloch was deliberately presented to the grand jury to prejudice Mr. Rendleman by implying that Mr. Rendleman was preying upon children and taking advantage of them to profit financially. In point of fact, this occurred during a time frame when Mr. Rendleman's daughters were trying to be like Madonna, so they dressed and tried to act like her. Again, it was Mr. Rendleman's daughters who requested that the film be made.
) On page 6 of his grand jury testimony, McCulloch testifies about a fourth video tape. Again, this video tape was taken in Santa Fe and had absolutely nothing to do with any charge being presented to the Rio Arriba County grand jury. This irrelevant testimony was deliberately provided to the grand jury to prejudice Mr. Rendleman by implying that the video tape must contain something illegal.
) On pages 7 and 8 of his grand jury testimony, McCulloch described some copies of images that appeared to be Scarlet and Kelley sitting on a copier without any pants on, exposing their genitals on the copies. These images were produced in Santa Fe County, not Rio Arriba County. Evidence concerning the copies was presented to the Santa Fe County grand jury as evidence of crime. The Santa Fe County grand jury considered the evidence and no-billed the counts relating to these images. This irrelevant, prejudicial testimony was presented for the sole purpose of prejudicing the Rio Arriba County grand jury against Mr. Rendleman with irrelevant information that another grand jury had already found did not constitute any crime.
) On page 9 of his grand jury testimony, McCulloch gave a triple hearsay account of an incident that allegedly occurred 23 years ago which relates to Mr. Rendleman's oldest daughter, Jasmine. The account offered by McCulloch is clearly offered to imply that Mark Rendleman had sexual relations with his daughter when she was 3 years old. The substance of the implication is flatly untrue and is denied by the principals. This grossly irrelevant testimony by McCulloch was deliberately elicited and designed to prejudice Mr. Rendleman in the eyes of the Rio Arriba County grand jury in the most serious way possible by falsely implying that Mark had sex with his own daughter when she was young.
) On page 10 of his grand jury testimony, McCulloch opined that "everybody" is afraid of Mark because of his weapons. This observation constitutes pure speculation on McCulloch's part. It is also untrue. Mark is known to be a very gentle man. He has not been involved with physical threat or violence against another human being during his adult life. It is plain to see that this is yet another deliberate attempt to deliberately prejudice the grand jury with speculative, untrue, irrelevant, and highly inflammatory testimony that does not relate in any way to the charges against Mr. Rendleman or Ms. Barbosa.
) On page 11 of his grand jury testimony, McCulloch discusses two incidents of alleged touching of Kelley by Mr. Rendleman. The first, at least, relates to an incident that allegedly occurred in Rio Arriba County. It is described as having been accidental. The second incident allegedly occurred in Santa Fe and was presented to the Santa Fe County grand jury. Mr. Rendleman was indicted by the Santa Fe County grand jury on this charge. Testimony concerning either one of these incidents is totally irrelevant to the charges presented to the Rio Arriba County grand jury for their consideration. The presentation of these allegations to the grand jury is another deliberate attempt to inflame the grand jury with irrelevant, inadmissible evidence with the purpose of prejudicing the grand jury against Mr. Rendleman.
) On page 12 of his grand jury testimony, McCulloch provided hearsay testimony claiming Kelley told him that sometimes Mr. Rendleman woke up with an erection and paraded around the children while they were eating breakfast. McCulloch also attributed Kelley as stating that Mark masturbated in front of the children. Putting aside the question of the truth of these statements (which Mr. Rendleman adamantly denies), these assertions by McCulloch have absolutely nothing to do with the charges considered by the grand jury against Mr. Rendleman. The only purpose in introducing this irrelevant and inadmissible testimony was to prejudice the grand jury against Mr. Rendleman.
) On page 13 of his testimony before the grand jury, McCulloch launched into a hearsay description of remarks supposedly made to him by Kenny concerning video taping done by Mr. Rendleman. As with virtually all of the other testimony provided by McCulloch to the Rio Arriba County grand jury, this information related to Santa Fe County matters. This information was also presented to the Santa Fe County grand jury, which no-billed all counts relating to the Santa Fe matters referred to by McCulloch. Again, the introduction of this inadmissible, irrelevant and prejudicial testimony was calculated to poison the grand jury's sentiments against Mr. Rendleman for purposes of obtaining an indictment.
) On page 14 of his grand jury testimony, McCulloch provided more hearsay testimony concerning irrelevant matters that had absolutely nothing to do with any of the charges being considered by the grand jury. Part of this discourse related to the religious practices of Mr. Rendleman that McCulloch tried to depict as being odd. McCulloch also provided hearsay testimony concerning sexual toys alleged to have been in Mr. Rendleman's possession. These observations had absolutely nothing whatsoever to do with the charges being considered by the grand jury. They were introduced into evidence for the express purpose of convincing the grand jury that Mr. Rendleman is an odd man who should be indicted because he is different from others.
) On page 15 of his grand jury testimony, McCulloch provided further double hearsay testimony in which he speculated that Mr. Rendleman had been asked to leave a position at the teen center in Santa Fe because he was video taping some teenager. Even if this speculation was not the total fantasy that it is, it would be totally irrelevant for consideration by the Rio Arriba County grand jury. Again, the only purpose of providing testimony such as this that would not be admissible from McCulloch in any criminal trial is to prejudice the grand jury against Mr. Rendleman with untrue, irrelevant and prejudicial hearsay testimony.
) On pages 15 and 16 of his grand jury testimony, McCulloch launched into a totally irrelevant character assassination of Mia Barbosa. McCulloch testified that a complaint had been received by child protective services from a neighbor that Mr. Rendleman was playing with Kenny, Kelley and Scarlet in the Rio Grande River while in the nude. McCulloch then went on to provide hearsay testimony to the effect that Ms. Barbosa had instructed the children not to get Mark in trouble during a safe house interview of that incident. In point of fact, the person who called child protective services was having a land dispute with Mr. Rendleman. The neighbor tried to enlist child protective services as a weapon to use against Mr. Rendleman in the land dispute. Both at the time of the report (which was two years ago) and when questioned recently during a safe house interview, the children denied that Mr. Rendleman had done anything whatsoever inappropriate. At the time, the authorities determined that nothing inappropriate had occurred and cleared Mr. Rendleman of the false allegations. When McCulloch testified concerning this incident, he did not provide any of the context just described. Nor, was it an issue before the Rio Arriba County grand jury as to whether Ms. Barbosa had tampered with the child witnesses in this case. Again, this testimony was totally irrelevant, highly prejudicial and presented for the sole purpose of prejudicing the grand jury against Mr. Rendleman and Ms. Barbosa.
. The State Failed to Present Exculpatory Evidence to the Grand Jury as Required in NMSA 1978, ¤ 31-6-11.
The legislature has required that "[t]he prosecuting attorney assisting the grand jury shall present evidence that directly negates the guilt of the target when he is aware of such evidence." NMSA 1978, ¤ 31-6-11. (emphasis supplied.) By the very terms of the statutory language, the requirement for presenting exculpatory evidence to the grand jury is mandatory, not permissive in nature. In construing this statute, the New Mexico Supreme Court has held that failure to present exculpatory evidence to the grand jury which directly negates the guilt of the accused constitutes a due process violation. Buzbee, supra at 698. In addition, the knowing use of false evidence or the failure to correct false evidence presented to a grand jury is a violation of due process. State v. Reese, 91 N.M. 76, 79, 570 P.2d 614 (Ct. App. 1977). In this case, substantial violations of the statutes, as well as Buzbee, and Reese have occurred .
Kenny Stewart and Kelley Stewart are two alleged victims in this case. Allegations of similar nature occurred both in Santa Fe and Rio Arriba Counties. The Santa Fe County grand jury met eight days before the Rio Arriba County grand jury. The State recognized the importance of Kenny and Kelley's testimony and called them to testify at the Santa Fe County grand jury. After the direct examination by the prosecutor, the grand jurors asked numerous questions of both Kenny and Kelley. The Santa Fe grand jury found the testimony of the children to be invaluable. Kenny testified that Mark videoed the children when they were skinny dipping and having fun. See Exhibit B, the first part of the transcript of the Santa Fe County grand jury testimony at page 19. Kenny also testified that Kelley and Scarlet Rendleman liked to "run around naked." Id. He revealed that Kelley and Scarlet asked Mark to video tape them, and that Mark was wearing clothes when the video taping occurred in Santa Fe. Id. Kenny testified that he, himself, did the video taping one time. See Exhibit C, the second part of the Santa Fe County grand jury testimony at page 2. Kenny testified that Mark was always taking pictures and filming the children. Id. Kenny testified that Kelley and Scarlet liked to hang out without their clothes on and that they felt comfortable doing it together. Id. at 2, 3, 4 and 5. Kenny told the Santa Fe County grand jury that Mark did not instruct Kelley and Scarlet how to dance or how to use their props. Id. at 5.
Kelley Stewart also testified before the Santa Fe County grand jury. She testified that Mark video taped and took pictures of them when they were playing and just having fun. Id. at 7. Kelley testified that sometimes their clothes were on, and sometimes they were off. Id. Kelley told the grand jury that they were video taped when they were playing and when the children wanted to make a movie and act out parts in their own movie. Id. Kelly made it clear that she and Scarlet made up the dances themselves, that they liked making little movies and skits, and that it was she and Scarlet who put together all of the skits and named them. Id. at 10. Kelley testified that it was all her and Scarlet's idea to do the skits, not Mark's idea. Id. Kelley testified that she, Scarlet and Kenny had a choice as to whether they had their clothes on or not. Id. When asked whether Mark would turn off the camera when asked to do so, Kelley responded that they had "never asked him to turn the camera off." Id. at 10 and 11.
That the Santa Fe County grand jury found the testimony of the children useful was evidenced by the fact that they asked over two dozen questions of Kenny and Kelley after the children had been questioned by the prosecutor. The exculpatory nature of Kenny and Kelley's testimony is evidenced by the fact that 25 out of the 27 counts presented to the grand jury for indictment were thrown out after the children's testimony was heard.
As Buzbee, supra and ¤ 31-6-11 make clear, evidence must directly negate the guilt of the accused in order to be considered exculpatory. A review of the statutes involved in this case makes it plain that Kenny and Kelley's testimony was exculpatory in nature.
NMSA 1978, ¤ 30-6A-3(B) (1993) is the statute under which Mr. Rendleman and Ms. Barbosa are charged for Sexual Exploitation of Children. The statute provides that:

It is unlawful for any person to intentionally cause or permit a child under 18 years of age to engage in any prohibited sexual act or simulation of such an act if that person knows, has reason to know or intends that the act may be recorded in any visual or print medium or performed publically ...

The "prohibited sexual act" specified in the statute that applies in this case is the "lewd and sexually explicit exhibition with a focus on the genitals or pubic area of any person for the purpose of sexual stimulation." NMSA 1978, ¤ 30-6A-2(A)(5) (emphasis supplied). The testimony of Kenny and Kelley made it abundantly clear that the filming and picture taking of Mark was not done for the purpose of sexual stimulation. Part of it was done at the request of children for skits they had authored and performed. Part of it was done to record the children's play. None of it was done for the purpose of sexual stimulation. The Santa Fe County grand jury obviously recognized that, because all counts of sexual exploitation of children presented to them that related to Kenny and Kelley were rejected.
The prosecutor did not present Kenny and Kelley to the Rio Arriba County grand jury to testify. Their testimony would have been equally exculpatory in the Rio Arriba County case. Their testimony would have been directly exculpatory to show that Mark and Mia were innocent of sexual exploitation of children because the films and photographs taken were not done for the purpose of sexual stimulation. This is true not only for the photography and videography taken of the everyday events of the children in Rio Arriba County, it is also true of the photographs taken during the "cave man shoot". In the cave man photographs, Kenny, Kelley and Mark are all nude. That the photographs were not taken for the purpose of sexual stimulation is additionally apparent by the fact that Mark's penis is not erect or aroused in any of the photographs.
The testimony of the children was equally as exculpatory for the criminal sexual contact of a minor charges lodged against Mark and Mia. The elements of that charge require that the conduct must be done in a manner calculated to arouse or gratify sexual desire. See State v. Osborne, supra, at 661; State v. Pierce, supra, at 80; and Rule 14-132, NMRA 1999. Kenny and Kelley's testimony before the Rio Arriba County grand jury, coupled with a viewing of the photographs taken during the cave man shoot would have been exculpatory. Failure to present Kenny and Kelley's exculpatory testimony constitute grounds for quashing the indictment.

. The Prosecutor Did Not Provide the Grand Jury With an Instruction that Allowed Them to Consider the Freedom of Expression Defense.
Mark Rendleman appeared before two state magistrate judges, one state district court judge and one federal magistrate judge prior to the case being presented to the Rio Arriba County grand jury. At each of the arraignments held before the four judges mentioned above, Mr. Rendleman asserted his right to freedom of expression under the State and Federal Constitutions as a defense to the charges against him. The prosecutor who presented the case to the Rio Arriba County grand jury attended three of those four hearings and was aware of this defense. The particulars of this defense are stated in the Memorandum of Law in Support of Motion to Dismiss Based on First and Fourteenth Amendments and N.M. Const. Art. II, Section 17 filed in this cause on January 12, 2000. The arguments made in that memorandum make it clear that the freedom of expression of the federal and state constitutions are a potential defense to the charges brought to the Rio Arriba County grand jury. The prosecutor was well aware of these defenses, yet did not provide the Rio Arriba County grand jury with an instruction to allow the defense to be considered. It is the responsibility of the prosecutor to assist the grand jury. Because the grand jurors are lay people and the prosecutor is an attorney, it is incumbent upon the prosecutor to instruct the grand jury as to both the elements of crimes and legal defenses to those crimes. The failure of the prosecutor to provide the freedom of expression defense instruction was a breach of the prosecutor's duty to assist the jury and a breach of the duty to be fair and impartial.

The sum of the conduct described in this memorandum constituted overreaching by the prosecution that it subverted the Rio Arriba County grand jury proceedings. It is not as though the prosecution did not know that virtually all of McCulloch's testimony related to irrelevant, inadmissible evidence which occurred in Santa Fe County. The same prosecutors who presented the case to the Rio Arriba County grand jury presented the case to the Santa Fe County grand jury. The prosecution deliberately elicited the vast amount of inadmissible, irrelevant and highly prejudicial testimony through a careful line of questioning. The prosecution knew better than to allow irrelevant testimony about incidents alleged to have occurred in a different venue, as evidenced by the fact that the same prosecutors interrupted Kenny and stopped him from testifying about Rio Arriba matters during his testimony before the Santa Fe County grand jury. The testimony of McCulloch was a deliberate, and ultimately successful, attempt to subvert the grand jury proceedings. Likewise, failing to call the children as witnesses was a deliberate move by the prosecution to deprive the Rio Arriba County grand jury of exculpatory information. Again, the prosecution was well aware of the powerfully exculpatory nature of the children's testimony because the same prosecutors presented the case to the Santa Fe County grand jury just eight days earlier. Finally, The prosecution was well aware of the freedom of expression defense and failed to instruct the grand jury on it.
Buzbee, supra, and Ballinger, supra, require an indictment to be quashed when the prosecutor's conduct amounts to deceitful or malicious overreaching that subverts the grand jury proceedings. That has certainly occurred in this case. Hewett, supra, further requires that the accused show demonstrable prejudice. There is no better demonstration of prejudice than the fact that when the children testified themselves before the Santa Fe County grand jury without other irrelevant and inadmissible testimony being introduced, 25 out of 27 charges similar to those presented to the Rio Arriba County grand jury were thrown out. Eight days later, with no testimony from the children and the shameful exhibition by McCulloch, Mark Rendleman was indicted on 30 felony counts and Mia Barbosa was indicted on 20 felony counts. Under the law, this court is required to quash the indictment against Mr. Rendleman and Ms. Barbosa.

. Conclusion
For the reasons enumerated above, Mr. Rendleman and Ms. Barbosa respectfully request that the indictments in this case be quashed.

Respectfully submitted,

ROTHSTEIN, DONATELLI, HUGHES,
DAHLSTROM, CRON & SCHOENBURG, LLP

By:_______________________________
Dan Cron
Post Office Box 8180
500 Montezuma Avenue, Suite 101
Santa Fe, New Mexico 87504-8180
(505) 988-8004
Attorneys for Defendant Mark Rendleman

THE MARLOWE LAW FIRM, P.C.

By:_______________________________
Dan Marlowe
P.O. Box 8207
Santa Fe, New Mexico 87504
(505) 988-1144

I certify that I served a copy of the foregoing Motion to Quash Indictment to Maria Sanchez-Gagne, Assistant District Attorney, District Attorney's Office, 327 Sandoval, Santa Fe, New Mexico 87501 on the ____ day of January, 2000 by hand-delivery.

_____________________________________
ROTHSTEIN, DONATELLI, HUGHES
DAHLSTROM, CRON & SCHOENBURG, LLP

S:005.00to Quash Indictment.wpd
1 A copy of the verbatim transcript of the Rio Arriba County grand jury is attached hereto as "Exhibit A". The Santa Fe County grand jury transcript is in two parts. A verbatim copy of the first part of the transcript of the Santa Fe County grand jury is attached hereto as "Exhibit B". A verbatim copy of the second part of the transcript of the Santa Fe County grand jury is attached hereto as "Exhibit C".

THIS REPLY WILL BE POSTED SOON