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,
MARK RENDLEMAN and TIFFANY MIA BARBOSA,
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
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.
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
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
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
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.
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
. . . 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
) 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
) 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
) 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.
For the reasons enumerated above, Mr. Rendleman and Ms. Barbosa
respectfully request that the indictments in this case be quashed.
ROTHSTEIN, DONATELLI, HUGHES,
DAHLSTROM, CRON & SCHOENBURG, LLP
Post Office Box 8180
500 Montezuma Avenue, Suite 101
Santa Fe, New Mexico 87504-8180
Attorneys for Defendant Mark Rendleman
THE MARLOWE LAW FIRM, P.C.
P.O. Box 8207
Santa Fe, New Mexico 87504
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