Petition — Bucuvalas v. Massachusetts

Supreme Court brief1978

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.

FILE D

MAY on 1979

In the

Supreme Court of the United States.

Ocrosen Team, 1977.

* 77-1678

GEORGE BUCUVALAS,

PETITIONER,

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

Petition for a Writ of Certiorari to the Appeals Court

for the Commonwealth of Massachusetts.

Morns M. Go.pincs,

Kenneru H. TATARiAn,

Manoney, Hawkes & GoLprncs,

500 Boylston Street,

Boston, Massachusetts 02116.

(617) 261-2300

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS.

Opinion below

Jurisdiction

Questions presented

Constitutional provision involved

Statutes involved

Statement of the case

Reasons for granting the writ

Table of Contents.

a + £+ O&O Ww bw

The enlargement of the scope of the criminal

statute under which the petitioner was charged

and the application of that enlarged scope to

the petitioner violated the Due Process Clause

of the Fourteenth Amendment to the United

States Constitution in that it constituted a

retroactive and unforeseeable application of

the criminal law 7

A. The unforeseeable and retroactive en-

largement of the meaning of the term

“sexual intercourse” and its application to

the facts of this case deprived the petitioner

of due process of law 9

1. The meaning of the term “sexual inter-

course” as commonly used and under-

stood and as judicially construed in Mas-

sachusetts case law 9

2. The term “sexual intercourse” was ju-

dicially enlarged and retroactively applied

in petitioner's case in violation of the Due

Process Clause 13

B. General Laws c. 272, § 6, is unconstitu-

tional as applied to a private and consensual

act of fellatio between adults 15

TABLE OF CONTENTS.

1. Chapter 272, § 6, was unforeseeably

and retroactively applied to a private and

consensual act of fellatio between adults

— an act which was not criminal when

engaged in

2. General Laws c. 272, § 6, is unconstitu-

tionally vague as applied in that it fails to

provide adequate notice that a private

consensual act of fellatio is unlawful

. Petitioner was deprived of due process of

law because his conviction was based upon no

or insufficient facts to support findings that

the female had a purpose of unlawfully having

sexual intercourse or that petitioner had

knowledge of that purpose and there was no

corroboration as required by Massachusetts

General Laws c. 272, § 11, and because the

affirmance of his conviction by the Appeals

Court was based upon facts not in the record

and failed to account for facts in the record

bearing on material issues

A. There was no evidence that Connie Peria

resorted to or was in or upon the premises

for the purpose of unlawfully having sexual

intercourse

B. There was no or insufficient evidence that

petitioner had knowledge of Connie Peria’s

purpose

C. There was no corroboration as required

by General Laws c. 272, § 11

Ill. The instructions to the jury deprived pe-

titioner of due process of law

TABLE OF CONTENTS.

A. The trial justice failed to instruct as re-

quested that the term “sexual intercourse”

refers to the natural act of coition or copula-

tion and does not refer to types of sexual

acts other than that and erred by instructing

that the term “sexual intercourse” includes

unnatural acts

B. The trial justice refused to instruct the

jury as requested by the petitioner or by

any other instruction that they were re-

quired to determine the issue whether the

act which occurred was unlawful and that

act was committed in private

C. The trial justice failed to instruct as re-

quested or by any other instruction that the

jury must find that petitioner knew the fe-

on the

her unlawful purpose in being on the

premises

Conclusion

Appendix A: Portions of Record in Trial Court Show-

Appendix C: Judgment of Appeals Court

19a

iv TABLE OF AUTHORITIES CITED.

Table of Authorities Cited.

Cases.

Balthazar v. Superior Court, 428 F. Supp. 425 (D.

Mass. 1977), aff'd, No. 77-1159 (Ist Cir. April 4,

1978) 15n, 20

Bouie v. City of Columbia, 378 U.S. 347 (1964) 7, 8,

15, 18, 21

Commonwealth v. Altenhaus, 317 Mass. 270 (1944) 24

Commonwealth v. Balthazar, 366 Mass. 298 (1974) 9, 11,

16, 17n, 18, 19, 29

Commonwealth v. Bucaulis, _... Mass. App. Ct.

_., 373 N.E. 2d 221 (1978), Mass. App. Ct.

Adv. Sh. (1978) 124, further appellate review

denied, __. Mass. _.. (1978), Mass. Adv. Sh.

(1978) 826 2, 14, 20, 23, 27

Commonwealth v. Cook, 53 Mass. (12 Met.) 93

(1846) 10

Commonwealth v. DeBrosky, 363 Mass. 718 (1973) 26, 27

Commonwealth v. Delano, 197 Mass. 166 (1908) 11, 28

Commonwealth v. Deschamps, 1 Mass. App. Ct. 1

(1972) ll

Commonwealth v. Gallant, _... Mass. __. (1977),

Mass. Adv. Sh. (1977) 2254 12, l4n, 15n

Commonwealth v. Gonzales, _.. Mass. App. Ct.

___. (1977), Mass. App. Ct. Adv. Sh. (1977) 1211 12

Commonwealth v. Hussey, 157 Mass. 415 (1892) 10

Commonwealth v. King, _... Mass. —._ (1977),

Mass. Adv. Sh. (1977) 2636 20

TABLE OF AUTHORITIES CITED. v

Commonwealth v. Lynes, 142 Mass. 577 (1886) 10

Commonwealth v. McCan, 277 Mass. 199 (1931) 10

Commonwealth v. Reilly, ___ Mass. App. Ct. ___

(1977), Mass. App. Ct. Adv. Sh. (1977) 736 19, 20

Commonwealth v. Scagliotti, __. Mass. ____ (1977),

Mass. Adv. Sh. (1977) 2323 16, 17, 19,

20, 23, 25, 29

Commonwealth v. Squires, 97 Mass. 59 (1867) 10, 11

Commonwealth v. Williams, 353 Mass. 233 (1967) 26

Douglas v. Buder, 412 U.S. 430 (1973) 8, 15, 18, 21

Ford v. Flaherty, 364 Mass. 382 (1973) 2n

Mullany v. Wilbur, 421 U.S. 684 (1975) 20n, 29

Rose v. Locke, 423 U.S. 48 (1975) 8, 15

Winship, In re, 397 U.S. 358 (1970) 29

Yoder v. United States, 80 F. 2d 665 (10th Cir. 1935) 22

CONSTITUTIONAL AND STATUTORY PROVISIONS.

United States Constitution, Fourteenth Amendment,

Due Process Clause 3, 7, 8, 13, 17, 25, 26 et seq.

28 U.S.C. § 1257(3) 2

Mass. G.L. c. 139, §§ 4, 5, 20 20

Mass. G.L. c, 265, § 22 11, 12

Mass. G.L. c, 272

§6 4, 8, 9, 12n, 13, 14, 15 et seq.

§ 11 4, 6, 21, 25, 26, 27

§ 35 11, 18

Mass. Stat. 1886, c. 329, § 5 13n

Mass. Stat. 1974, c. 474, § 1 1]

vi TABLE OF AUTHORITIES CITED.

MISCELLANEOUS.

American Heritage Dictionary, The (1973) 9, 10

Black’s Law Dictionary (4th ed. 1968) 10

Webster's Third New International Dictionary

(1964) 10, 16

In the

Supreme Court of the United States.

Ocroser Term, 1977.

No.

GEORGE BUCUVALAS,

PETITIONER,

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

Petition for a Writ of Certiorari to the Appeals Court

for the Commonwealth of Massachusetts.

The petitioner, George M. Bucuvalas, prays that a writ of

certiorari issue to review the judgment of the Appeals Court

of the Commonwealth of Massachusetts entered February 24,

1978.

Opinion Below.

The opinion of the Appeals Court of the Commonwealth

of Massachusetts is reported as Commonwealth v. Bucaulis,'

__ Mass. App. Ct. ___., 373 N.E. 2d 221 (1978) (Mass.

App. Ct. Adv. Sh. [1978] 124), and is reprinted as Appendix

B to this petition at pp. 9a-18a. Further appellate review

was denied by the Supreme Judicial Court of the Common-

wealth of Massachusetts on March 28, 1978.* _._ Mass.

_____ (1978) (Mass. Adv. Sh. [1978] 826).

Jurisdiction.

The judgment of the Appeals Court of the Commonwealth

of Massachusetts was entered on February 24, 1978, and is

reprinted as Appendix C to this petition at p. 19a. The Su-

preme Judicial Court of the Commonwealth denied further

appellate review without opinion on March 24, 1978.’ The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1257(3).

Questions Presented.

1. Whether the enlargment of the scope of the criminal

statute under which the petitioner was charged and the

'The Appeals Court of Massachusetts adopted the spelling of peti-

tioner’s name as it appeared in the criminal complaint. See App. B at

Ya n. 1.

*Further appellate review by the Supreme Judicial Court of a deci-

sion of the Appeals Court is discretionary. Denial of further appellate

review is not an affirmation of the decision or reasoning of the Appeals

Court. Ford v. Flaherty, 364 Mass. 382, 387 (1973).

*See n. 2, supra.

application of that enlarged scope to the petitioner violated

the Due Process Clause of the Fourteenth Amendment to

the United States Constitution in that it constituted a retro-

active and unforeseeable application of the criminal law?

2. Whether the petitioner was deprived of due process

of law under the Due Process Clause of the Fourteenth

Amendment to the United States Constitution because his

conviction was based upon no or insufficient evidence of

material elements of the offense and of corroboration as re-

quired by state law and because the affirmance of his con-

viction was based upon facts not in the record and failed to

account for facts in the record bearing on material issues?

3. Whether the trial justice’s instructions to the jury and

failure to instruct as requested deprived the petitioner of

due process of law under the Due Process Clause of the

Fourteenth Amendment to the United States Constitution by

failing to require the prosecution to prove beyond a reason-

able doubt every fact necessary to establish all material ele-

ments of the offense with which petitioner was charged?

Constitutiona! Provision Involved.

Constitution of the United States, Amendment XIV:

[N Jor shall any State deprive any person of life, liberty,

or property, without due process of law .. ..

Statutes Involved.

Massachusetts General Laws c. 272, § 6 (one controlling a

place, inducing or suffering female to resort there for sexual

intercourse):

Whoever, being the owner of a place or having or

assisting in the management or control thereof induces

or knowingly suffers a female to resort to or be in or

upon such place, for the purpose of unlawfully having

sexual intercourse, shall be punished as provided in sec-

tion three.

Massachusetts General Laws c. 272, § 11 (corroboration

of one witness; limitations):

A person shall not be convicted under sections two to

six, inclusive, upon the evidence of one witness only,

unless his testimony is corroborated in a material partic-

ular, and prosecution for a violation of any of said

sections shall not be commenced more than one year

after the commission of the crime.

Statement of the Case.

Petitioner was the President of United Food Corporation

and was the manager of a night club and lounge owned

and operated by that corporation in Boston, Massachusetts.

On October 14, 1976, a customer of the lounge, Edward

Wolfe, engaged in a consensual act of fellatio on the prem-

ises with a female, Connie Peria, who was employed by the

corporation as a dancer and entertainer at the lounge.

A criminal complaint issued against petitioner charging

him with “knowingly suffering a female to resort to or be in

or upon [that place] for the purpose of unlawfully having

sexual intercourse.” (See Statutes Involved.) Petitioner

moved to dismiss the complaint, raising as issues whether

the statute was unconstitutionally vague, whether it did

apply or could constitutionally be applied in this case to

consensual acts in private, and whether it did apply or

could constitutionally be applied in this case to an act or a

purpose to engage in an act other than sexual intercourse.

(R. 4-5; App. A at pp. la-2a).‘ Defendant preserved his

exception to the denial of the motion (T:. 26)* and pursued

the issues on appeal (R. 19-31; App. A at pp. 4a-8a).

At trial, evidence was introduced to show that the lounge

consists of three rooms, in each of which there is a stage

upon which the dancers and entertainers perform. Around

each stage is a bar and barstools and at the perimeter of

each room are booths. The entertainment at the lounge

consists of dancing and music. When the dancers and

entertainers are not dancing, they mingle with the customers

and attempt to get them to purchase drinks and bottles of

champagne. Mr. Wolfe entered the lounge, sat at the

bar in the main lounge, ordered a drink and engaged in

conversation with the barmaid. Peria came over and en-

gaged in conversation with him,’ after which he purchased

‘References to (R. ) are to the printed summary of the record which

contains the documents filed in the trial court.

* References to (Tr. _) are to the transcript of the testimony and other

proceedings at trial.

*The conversation was not admitted as against petitioner (Tr. 175-177)

although it was admitted against Connie Peria, who was a codefendant

and was convicted of prostitution. In Argument II, infra, petitioner

challenges the Appeals Court's reliance on the excluded conversation to

sustain petitioner's conviction.

a bottle of champagne and they went to a second lounge

to the side of the main lounge.

The lounge to which Wolfe and Peria went was used only

in the evening. At the time of the incident, it was closed to

the public, had a door, was otherwise unoccupied and was

pitch black such that one could not see into the room with

the naked eye and could not see in the booth unless one

were in the booth itself. Both Peria and Wolfe were in the

lounge for approximately 20 minutes, during which time

they had conversation and drank champagne. Wolfe then

talked Peria into performing an act of fellatio upon him.

Mr. Wolfe did not see petitioner talk to the barmaid or to

Peria and did not see him in the main lounge or the side

mee teagan eter centr thy ony He did not see

etitioner on the premises until after he and Peria exited

com tho soom upon completion of Ge ant. When the

police entered the premises, they were met by petitioner at

the reception booth at the front door of the lounge. He

accompanied them on an inspection of the premises and

they observed Peria and Wolfe exit separately from the

closed room, entered the room and saw a bottle of cham-

nage ace Cama See

At the close of the Commor case, petitioner

moved far 0 Ginestad vendin of ast guilty on he Quah

that there was no or insufficient evidence that the female

had the purpose required under the statute or that petitioner

had the requisite knowledge, that there was no corrobora-

tion as required by Massachusetts General Laws 0. 272,

§ 11 (see Statutes Involved), and that the statute could not

be applied to an act of fellatio or to a purpose to engage in

that act or to a private consensual sexual act between adults

or to a purpose to engage in such an act. Petitioner pre-

served his exception to the denial of the motion and pursued

the issues on appeal (Tr. 244; R. 21-22; App. A at p. 5a).

Upon the close of all the evidence, petitioner renewed his

motion for a directed verdict of not guilty on the same

R. 22-23; App. A at p. 5a).

By request for instructions to the jury, petitior

ceumtad Gat Go Gatatn G8 eat eoaly @ exo Chat Gen

sexual intercourse or to acts or a purpose to engage in acts

which were consensual and between adults in private (R.

14-16; App. A at pp. 2a-3a). Exceptions to the refusal to

give these instructions were noted and the issues were pur-

sued on appeal (R. 23-25; 28-29; App. A at pp. 6a-8a).

Upon conviction, petitioner was sentenced to serve three

months in the house of correction and to pay a $1,250 fine.

A motion for stay of execution of sentence pending appeal

was denied by the trial justice, but granted by an appellate

justice. The stay was vacated subsequent to the denial of

petitioner's application for further appellate review by the

Supreme Judicial Court and petitioner commenced serving

his sentence on April 3, 1978.

7 7m: the Writ.

Il. Tue ENLARGEMENT OF THE Scope oF THE CRIMINAL

Stature uNpDeR Wuicn rue Perrrioner was CHARGED AND

THE APPLICATION OF THAT ENLARGED Score To THE Per-

trrioner VioLatep THe Due Process Clause or THe Four-

TEENTH AMENDMENT TO THE UNrrep States CoNnstTITUTION

IN THAT rr ConstrruTep a Rernoactive AND UNFORESEE-

ABLE APPLICATION OF THE CRIMINAL Law.

Leonean amy neo City of Columbia, 378 U.S. 347

tion of the narrow and precise language of a state statute to

conduct which was not previous!v within the reach of the

statute.

Petitioner contends that, prior to the decision by the Ap-

peals Court in his case applying the statute to an act of

fellatio, the term “sexual intercourse” as used in Massachu-

setts General Laws c. 272, § 6, referred only to the act by

Se ne ee

ash enteannednnaltnas tien aadisemenianaaaian

of thet tenn fo Mennsiuntts coe law. See Argument

xp: co ne Se ee

Argument, I.A.2., infra.

The decision of the Appeals Court is in direct conflict

with decisions of this Court in Bouie v. City of Columbia,

supra, and Douglas v. Buder, 412 U.S. 430 (1973). It is

also in conflict with the rationale of Rose v. Locke, 423

fer the reason that that decision upheld the applicatio of

the caste catate cally Gane Gn cate bad geacinady een

persons every reason to believe that the acts for which the

prosecution was commenced were within the statutory

language.

This is not an isolated case or an isolated decision by the

Appeals Court. While counsel cannot state how many

prosecutions are still pending under this statute, they can

state that they represent five other defendants against whom

fellatio or attempted acts of fellatio which occurred prior to

the decision of the Appeals Court in this case. Accordingly,

a decision by this Court on this issue will directly resolve

issues in at least five other prosecutions under this statute.

RS pa OSS Cae Se See

Deuien 6 tents cuenta 0 thats eb enema at

of fellatio on his premises because the Supreme Judicial

and consensual act of fellatio between adults is not a crimi-

od cit clita &@ Guenndiinn to Ghutetinntn See Com-

monwealth v. Balthazar, 366 Mass. 298 (1974).

the Meaning of the Term “Sorual Deters & poser =

plication to the Facts of this Case Deprived the Pe.

titioner of Due Process of Law.

1. The Meaning of the Term “Sexual Intercourse” as

Construed in Massachusetts Case Law.

do neem of GL. 0. O04 ls the date of the alleged

offense — October 14, 1976. Petitioner contends that by

the term “sexual intercourse” in G.L. c. 272, § 6, was meant

the act by which the male sexual organ penetrates the fe-

male sexual organ and not the act of fellatio.

Dictionaries provide the meanings of the terms “sexual

intercourse,” “fellatio” and “carnal knowledge” as they are

commonly used and understood.’ “Sexual intercourse” is

defined as “Coitus, especially between humans.” The

American Heritage Dictionary (1973) 1138. “Carnal know!l-

The dictionary definition of “carnal knowledge” is included here be-

eum Co pee vain & SS. 0 272, § 6, used the language

knowledge.” koe Casi enmgnene tin, afte

edge” is defined as “Sexual intercourse.” Jd. at 205. “Fel-

latio” ee ee Id. at

483. Webster's Third New International Dictionary (1964)

is in accord, as is Black’s Law Dictionary (4th ed. 1968).

tion between the two types of sexual acts and there is no

confusion as to the specific physical act which each word

describes or any overlap between the words “fellatio” and

“sexual intercourse.”

Massachusetts case law unvaryingly has construed the

terms “sexual intercourse” and “fellatio” in accordance with

nes hen So Sep eth o feuncaniinn tow of Go Guneee-

wealth that “[i}f, in the use of terms defining an offence,

species of tmenenality, the court can only give a like effect

to such words.” Commonwealth v. Cook, 53 Mass. (12

Met.) 93, 96-97 (1846). Thus, in Commonweam v. Lynes,

142 Mass. 577, 581-582 (1886), the Supreme Judicial Court

of sexual intercourse and that the trial judge properly in-

structed the jury that proof of carnal knowledge and pene-

ae a ee oa See also

onwealth v. McCan, 277 Mass. 199, 203 (1931);

v. Hussey, 157 Mass. 415, 416 (1892). In

y v. Squires, 97 Mass. 59 (1867), the Su-

prem Jadiotel Court held thet:

[Flrom very early times, in the law, as in common

of a woman by a man has been sexual bodily connec-

tion; and these words, without more, have been used

in that sense by writers of the highest authority on

criminal law, when undertaking to give a full and pre-

cise definition of the crime of rape. 97 Mass. at 61.

The difference between carnal copulation and other types of

sexual acts was made clear in Commonwealth v. Delano,

197 Mass. 166, 166-167 (1908), where the Court held that a

prior version of c. 272, § 35, which made criminal the

commission of any and all unnatural and lascivious acts

with another person, could not be applied to an act of

copulation because “[c Jopulation is the natural act of coition

and is not within the statute.” In Commonwealth v. Bal-

thazar, 366 Mass. 298, 302 (1974), the Supreme Judicial

Court held that an act of fellatio is an unnatural and lasci-

vious act within the meaning of G.L. c. 272, § 35. See also

Commonwealth v. Deschamps, 1 Mass. App. Ct. 1 (1972).

From these cases it is clear that Massachusetts courts have

always distinguished between carnal knowledge (which is

sexual intercourse), on the one hand, and unneturel and

preting the term “semuel intercourse” on tile & ound

with the common usage and understanding of the term set

forth above and make clear that sexual intercourse is the act

by which the male sex organ penetrates the female sex

organ, that it is a different act than the act of fellatio, and

that the two acts have never been considered to be under

the same statute in the Commonwealth of Massachusetts.

nother yates nterpreting that amendment.

Ba 1906 Geo Micmadbunts Restate enanied Go Meme.

chusetts rape statute (G.L. c. 265, § 22) to provide a punish-

ment for both “sexual intercourse ... [and] unnatural

sexual intercourse” (Stat. 1974, c. 474, § 1) where the statute

had previously made criminal only the forcible commission

of “carnal knowledge.” If the Legislature had thought or

intended that the words “sexual intercourse” included acts

of fellatio, it would not have distinguished between “sexual

intercourse” and “unnatural sexual intercourse” in the

amendment.

The recent decision of the Supreme Judicial Court in

Commonwealth v. Gallant, _... Mass. _. (1977) (Mass.

Adv. Sh. [1977] 2254), interpreting and construing the new

rape statute, reenforces petitioner's contentions:

By sexual intercourse, the Legislature undoubtedly in-

tended the traditional common law notion of rape, the

penetration of the female sex organ by the male sex

organ, with or without emission.... Similarly, the

definition of “unnatural sexual intercourse” must be

taken to include oral and anal intercourse, including

fellatio, cunnilingus, and other intrusions of a part of a

person's body or other object into the genital or anal

opening of another person's body. Jd. at 2263.

See also Commonwealth v. Gonzales, __. Mass. App. Ct.

___ (1977) (Mass. App. Ct. Adv. Sh. (1977) 1211), holdin,

that forcible sexual intercourse violates the “sexual inter-

course” portion of G.L. c. 265, § 22, and that forcible anal

intercourse violates the “unnatural sexual intercourse” por-

tion of the statute.

In the Gallant decision, the court also noted that the

words “unlawful sexual intercourse” had been used synony-

mously with “unlawful carnal knowledge” in many previous

decisions in Massachusetts."* Jd. at 2263 n. 7.

*The predecessor version of c. 272, § @, used the words “being unlaw-

fully and carnally known” in place of the words “unlawfully having

It is thus certain from the dictionary definitions of the

term “sexual intercourse, ° which reflect common usage and

aun cases, which reflect the legal counterpart, that the

term “venuel intercourse” has one and only one meaning in

ssachusetts and that that meaning is the one propounded

ty outa = the act by which the male sexual organ

penetrates the female sexual organ. The term “sexual inter-

course” has not only never been held to refer to an act of

fellatio, but every decision supports the contention that the

two physical acts are separate and distinct acts which are

terms.

2. The Term “Sexual Intercourse” was Judicially En-

larged and Retroactively Applied in Petitioner's Case

in Violation of the Due Process Clause.

In the state court proceedings, petitioner first asserted

that G.L. c. 272, § 6, was unconstitutionally vague by his

motion to dismiss the complaint in the Superior Court. In

part, the motion was based on the inapplicability of the

statute where the act upon which the prosecution was based

was an act of fellatio or a purpose to engage in such con-

duct. When the prosecution rested its case, petitioner again

pursued the point by moving for a directed verdict of not

uilty and arguing that the statute could not constitutionally

be applied to the facts in this case. Petitioner again asserted

his legal theory of the case in his requests for instructions to

sexual intercourse.” See Stat. 1886, c. 329, § 5. In its brief to the

ents Gee at Rent, Ge Comecewedth canted tat the

words “sexual intercourse” were coextensive in meaning with the words

“carnal knowledge.” This identity, of course, is precisely the petitioner's

point.

the jury which included an instruction defining sexual inter-

course as the natural act of coition or copulation. This re-

quest was denied and the justice instructed that both sexual

intercourse and unnatural sexual intercourse, as those terms

are used in the rape statute, were prohibited by G.L.

c. 272, § 6, and constituted sexual intercourse under that

statute. Exceptions were saved to each adverse ruling. On

appeal, the petitioner again pursued all of the above argu-

ments.

In each instance in the trial court and on appeal, the pros-

ecution contended and the court held or ruled that an act

of fellatio is an act of sexual intercourse within the meaning

of G.L. ec. 272, § 6. See Commonwealth v. Bucaulis,

Mass. App. Ct. ___ (1978) (Mass. App. Ct. Adv. Sh. [1978]

124, 132), holding that:

The term “sexual intercourse” has commonly been em-

ployed to describe a variety of sexual conduct, including

the act of fellatio.... There is nothing before us

which indicates that the act of fellatio was previously

considered to be outside the scope of the statute... .

We accordingly conclude that the defendant should

have understood that his conduct was in violation of

the statute. (App. B at p. 16a.)

At no time was any authority binding upon petitioner given

for that ruling.’ Indeed, not only was there no authority to

*The Appeals Court did refer to Commonwealth v. Gallant, supra, in

support of its decision. However, as noted above, that decision supports

the petitioner's argument and not the Appeals Court ruling. Even if the

decision did support the Appeals Court ruling, it could not be relied

upon to support petitioner's conviction since it was not decided prior to

the date of the alleged offense and therefore gave no notice as to the

change in the construction of the term “sexual intercourse” from all

support the court’s rulings, but all authority as to the

meaning of the statute supports petitioner's argument. See

Argument I.A.1., supra. Thus, there was both an enlarge-

ment of the meaning of the term “sexual intercourse” which

was not foreseeable and an application of that new meaning

to the facts of this case. This factor distinguishes this case

from Rose v. Locke, 423 U.S. 48 (1975), which the Appeals

Court mentioned in its opinion. The United States Supreme

Court held in that case that the state had previously held

that the conduct involved was within the reach of the chal-

lenged statute. Thus, the application of the statute to that

defendant was not unforeseeable. Had the prior meaning

of the term “sexual intercourse” been adhered to in this case,

petitioner would have prevailed. This is precisely the type

of action held to be impermissible under the Due Process

Clause of the Fourteenth Amendment in Bouie v. City of

Columbia, supra, and Douglas v. Buder, supra. The pe-

tition should be granted to review this issue.

B. General Laws c. 272, § 6, is Unconstitutional as Ap-

plied to a Private and Consensual Act of Fellatio Be-

tween Adults.

Assuming that petitioner's rights were not violated for the

reasons set forth in Argument I.A., supra, petitioner con-

tends here that G.L. c. 272, § 6, is unconstitutional as ap-

plied to a private and consensual act of fellatio between

adults. In subargument 1, infra, petitioner asserts that the

prior decisions. See Balthazar v. Superior Court, 428 F. Supp. 425 (D.

Mass. 1977), aff'd, No. 77-1159 (lst Cir. April 4, 1978), granting a writ

of habeas corpus where there had been no construction of the statute

involved prior to the defendant's conduct while holding that interim

decisions saved the constitutionality of the statute in future. Thus, for

purposes of determining the foreseeability of the enlargement of the

meaning of the term, Gallant does not support the court's application of

the term to the conduct here.

statute was unforeseeably and retroactively applied to con-

duct which was not criminal when it was engaged in. In

subargument 2, infra, petitioner asserts that unless the’stat-

ute is construed as not applicable to private and consensual

acts of adults, it is unconstitutionally vague as applied be-

cause it failed to give adequate notice, in light of Common-

wealth v. Balthazar, supra, that a private consensual act of

fellatio between adults was unlawful.

1. Chapter 272, § 6, was Unforeseeably and Retro-

actively Applied to a Private and Consensual Act

of Fellatio Between Adults — An Act which was not

Criminal When Engaged In.

General Laws c. 272, § 6, does not make criminal one’s

knowingly permitting a female on his premises for the pur-

pose of having sexual intercourse under any and all circum-

stances, but applies only when the purpose of the female is

unlawfully to have sexual intercourse.

By common usage and understanding, the word “unlaw-

ful” means “[t hat which is contrary to law or unauthorized

by law .. . [t]hat which is not lawful . . . [t]he acting con-

trary to, or in defiance of the law; disobeying or disre-

garding the law.” Black’s Law Dictionary, supra, at 1705.

An “unlawful act” is defined as an “[a]ct contrary to law,

and presupposes that there must be an existing law.” Id.

“Unlawfully” is defined as “[i]llegally; wrongfully.” Jd. at

1706.

In Commonwealth v. Balthazar, supra, the Supreme

Judicial Court held that a private and consensual act of

fellatio between adults is not unlawful in Massachusetts. In

Commonwealth v. Scagliotti, ._. Mass. _ (1977)

(Mass. Adv. Sh. [1977] 2323), the court held that privacy

means “removal from the public view and elimination of

the possibility that . . . [a] defendant’s conduct might give

offense to persons present in a place frequented by members

of the public for reasons of business, entertainment, or the

like.” Id. at 2325. In that case, the defendant had solicited

a police officer to commit an unnatural act in a cubical in a

theatre open to the public. The court held that a question

of privacy was presented for the jury’s consideration.

The two cases cited make clear that, to determine whether

a purpose to engage in a sexual act is a purpose to engage

in an unlawful act, one must have reference to the circum-

stances under which that act would occur. In this case, the

act occurred in a room which was closed to the public, had

a door, was unoccupied by any other persons, and was so

dark that one could not see into the room with the naked

eye and could not see into the booth unless one were in the

booth. A clear question of privacy was presented for the

jury even if the court could not rule as a matter of law that

the act was in private. Thus, even if one could infer from

Connie Peria’s performance of a consensual act of fellatio in

private with Mr. Wolfe that she had a purpose to engage in

such an act, the statute was applied to an act and a purpose

to engage in an act under circumstances which would not

render that act unlawful.'® Thus, the statute was unfore-

seeably and retroactively applied to conduct which was not

unlawful at the time that the conduct was engaged in.

Such an application violates the Due Process Clause of the

Fourteenth Amendment and the principles underlying the

'°It is noted that the state courts did not use this approach to deny the

petitioner's arguments and to sustain his conviction. They clearly relied

upon a holding that an act of fellatio is an act of sexual intercourse. See

Argument I.A., supra. Throughout the state court proceedings,

however, petitioner argued that a private and consensual act of sexual

intercourse was not unlawful in light of the decision in Balthazar and

includes that argument here as an alternative to the argument set forth

in LA., supra.

United States Supreme Court’s decisions in Bouie v. City of

Columbia, supra, and Douglas v. Buder, supra.

2. General Laws c. 272, § 6, is Unconstitutionally

Vague as Applied in that it Fails to Provide Adequate

Notice that a Private Consensual Act of Fellatio is

Unlawful.

The clear implication, although not the express holding,

of the Appeals Court in petitioner's case is that G.L. c. 272,

§ 6, makes criminal the knowing allowance of a female to

be on premises for the purpose of engaging in an act of

fellatio even if that act is between consenting adults and in

private. If such is the meaning to be given to the statute,

then the petitioner contends that the statute is unconstitu-

tionally vague in that it fails to provide adequate notice

that such an act is an unlawful act.

The clear meaning of the decision in Commonwealth v.

Balthazar, supra, is that private and consensual sexual acts

of adults are not matters which certain state statutes regulate

even if the state has authority to regulate such conduct.

While the decision in that case concerned unnatural sex acts

under G.L. c. 272, § 35, it gave the public every reason to

believe that natural sex acts and unnatural acts under simi-

lar statutes would be outside of the prohibition of those

statutes. That reason is even stronger where the act held to

be unlawful — namely, fellatio — has previously been held

not to be unlawful when engaged in by consenting adults in

private. Accordingly, to the extent that c. 272, § 6, has

reference to other statutes or contemporary community

standards to determine what conduct is criminal, see Argu-

ment I1.B.1., supra, it leaves an individual of common

understanding and intelligence with an expectation that

consensual private sex acts are not unlawful. That such an

expectation is a reasonable expectation — indeed, even an

accurate expectation — is clear from Massachusetts case law

decided after the date of the alleged offense. In Common-

wealth v. Reilly, ___ Mass. App. Ct. ____ (1977) (Mass.

App. Ct. Adv. Sh. [1977] 736), the Appeals Court used

broad language in rejecting an assertion by the Common-

wealth that a defendant bears the burden of proving a pri-

vate and consensual act. The court stated that the Com-

monwealth’s contention

misconceives the significance of the Balthazar case.

That case concluded that “consensual conduct in private

between adults is not prohibited by [G.L. c. 272,]

§ 35.”... That the act was consented to is not “a

matter of excuse or justification” . . . for unnatural and

lascivious conduct — however pejorative that expression

may be — is no longer, in those circumstances, a crime

required to be excused or justified. Jd. at 739.

The case of Commonwealth v. Scagliotti, supra, is equally

helpful in determining the implications of Commonwealth

v. Balthazar, supra. The court held that a consensual un-

natural act must be committed in a public place in order to

be punishable and that the public nature of the consensual

act is an essential element to be proved by the prosecution.

Throughout the state court proceedings, at every available

opportunity, the petitioner challenged the application of

c. 272, § 6, to the conduct involved in this case on the

ground that the statute was unconstitutionally vague if it

applied to one’s knowing sufferance of a female to be on

premises for the purposes of engaging in a private and con-

sensual act of fellatio. The trial court rejected the peti-

tioner’s arguments and the Appeals Court sustained that

rejection by asserting that those privacy rights which might

be recognized with regard to certain sexual conduct engaged

in between consenting adults in private cannot be raised in

defense of the commission of prostitution on premises to

which the public has access. Commonwealth v. Bucaulis,

supra, at 131 (App. B at p. 15a). That assertion is clearly

erroneous for three reasons. First, as is manifestly apparent

fron: Commonwealth v. Reilly, supra, and Commonwealth

v. Seagliotti, supra, the private and consensual nature of

the act is not a matter of defense but is an affirmative part

of the Coramonwealth’s case.'' Second, the petitioner was

not charged with permitting prostitution on the premises.

Such a possible charge arises under entirely different stat-

utes, see G.L. c. 139, §§ 4, 5 and 20, and raises entirely

different issues. Third, Commonwealth v. King, ——

Mass. _.. (1977) (Mass. Adv. Sh. [1977] 2636), was in-

correctly cited by the Appeals Court because there the Su-

preme Judicial Court expressly stated, “we do not decide

whether ... [a conviction for prostitution based on per-

formance of sexual acts in private} would implicate a right

of privacy.” Jd. at 2646.

Finally, any limitation upon the right of individuals to

assert that private consensual acts of fellatio are not unlaw-

ful, which may be derived from Commonwealth v. King,

does not affect the issue whether G.L. c. 272, § 6, is uncon-

stitutional as applied to conduct which occurred in 1976 —

a time prior to the decision in Commonwealth v. King.

See Balthazar v. Superior Court, supra.

For the foregoing reasons, petitioner requests that a writ

of certiorari issue.

‘Rejecting the petitioner's requests for instructions, the trial justice

did not instruct that the Commonwealth bore the burden of proof on

these elements. This also was erroneous. See Mullaney v. Wilbur, 421

U.S. 684 (1975).

Il. Perrrioner was Dernivep or Due Process or Law

Because nis Conviction was Basep upon No on INsvur-

ricient Facts ro Support Finpincs THaT THE FEMALE

Hap a Purpose or UNLAwrutty Havine Sexvua. INTen-

course on THAT Perirrionen Hap KNOWLEDGE OF THAT

PURPOSE AND THERE WAS No CornrosporaTion as Reoumep

sy Massacnuserts Genera Laws c. 272, § 11, anp

Because THE AFFIRMANCE OF HIS CONVICTION BY THE Ap-

rpeacs Court was Basep upon Facts Nort in tue Recorp

AND Faitep to Account ror Facts in THE Recorp BEearinc

ON MATERIAL IssvuEs.

As a matter of constitutional law, a conviction based

upon no or insufficient facts establishing a violation of the

applicable statute deprives a defendant of due process of

law under the Fourteenth Amendment to the United States

Constitution. See Bouie v. City of Columbia, supra;

Douglas v. Buder, supra. Petitioner contends that on two

of the express material elements of G.L. c. 272, § 6, there

were no or insufficient facts to sustain his conviction. He

also asserts that there was no corroboration as required by

state law of the testimony of a witness in a material

particular and that his conviction was sustained on the basis

of facts not in the record and without accounting for facts

in the record which bear on material issues.

A. There was No Evidence that Connie Peria HKesorted

to or was in or Upon the Premises for the Purpose of

Unlawfully Having Sexual Intercourse.

The only direct evidence relating to the purpose for

which Connie Peria was on the premises was introduced

by the Commonwealth and, if believed, would warrant the

jury in finding that her purpose in being on the premises

was to act as a dancer and entertainer. A purpose of

unlawfully having sexual intercourse could certainly not be

inferred from this fact. Further, no act of sexual inter-

course or offer to engage in an act of sexual intercourse

occurred on the premises. No statement of intention or

purpose by Peria to be on the premises for the purpose of

having sexual intercourse was introduced as evidence.

Even if an act of fellatio were considered to be an act of

sexual intercourse within the meaning of the statute, there

was insufficient evidence to establish that Peria resorted to

or was on the premises for the purpose of engaging in such

an act. Not mentioned or accounted for in the Appeals

Court opinion but introduced at the trial was Mr. Wolfe's

admission that, when he and Peria went to the darkened

room, she did not do anything until he talked her into play-

ing with him and then performing fellatio on him. The

fact that Mr. Wolfe had to talk her into performing the act,

in light of the testimony as to the nature of her employment

as a dancer and entertainer, bears directly on the question

of her purpose. See Yoder v. United States, 80 F. 2d 665

(10th Cir. 1935), holding that proof of a narrowly defined

purpose can only be established by proof of that specific

purpose and not by proof of a mere inclination or willing-

ness to do the act for which purpose must be shown. Proof

of purpose requires proof of motivation. Jd. at 670.

In addition, there was no proof that an act of sexual

intercourse was engaged in. As asserted in Argument I.A.,

supra, sexual intercourse is a narrowly defined act, evidence

of which was lacking in this case.

Finally, there was no evidence that Connie Peria’s pur-

pose of engaging in an act of sexual intercourse was to

engage in such an act under circumstances which would

make that act unlawful. For the reasons stated in Argu-

ment I.B., supra, in order to be unlawful the act would

enone There was no evidence thatthe act wa

wusiils haien Gen Gunton ein endhs <6 Gane tunes. ywomamenan

wealth v. Scagliotti, supra, at 2324. Its failure to introduce

any evidence on these issues constitutes a failure to meet the

burden of its case-in-chief.

Accordingly, there was no or insufficient evidence that

Connie Peria resorted or was in the premises for the purpose

of unlawfully having sexual intercourse.

B. There was No or Insufficient Evidence that Peti-

tioner Had Knowledge of Connie Peria’s Purpose.

Contrary to the assertion of the Appeals Court in its

decision that the petitioner was present in the lounge during

the events that issue in this case, see Commonwealth v.

Bucaulis, supra, at 125 (App. B at p. 10a), the record in

this case affirmatively lacks evidence to support such a

finding. Mr. Wolfe testified that he never saw petitioner

talk to the barmaid or to Connie Peria, nor did he see peti-

tioner in the main bar or in the closed room where the act

was performed. He testified that he did not see the peti-

tioner until after he had exited from the room and all of his

conversations with Peria and the act itself were completed.

When the police officers entered the premises, they found

the petitioner at the front door in the reception booth.

Mr. Wolfe had been in the darkened room for approximate-

ly 20 minutes before he exited. It was prior to the time

when he went into that room that he engaged in his con-

versation with Peria at the bar. These facts fall far short of

permitting a finding that petitioner was present in the

lounge during the events at issue in this case.

While physical presence on the premises is not a material

element of an offense under c. 272, § 6, it bears directly on

the question of knowledge. In Commonwealth v.

Altenhaus, 317 Mass. 270 (1944), the Supreme Judicial

Court held that the word “knowingly” when used in a

criminal statute commonly imports a perception of the facts

requisite to make up the crime. Jd. at 273. The facts

which are requisite here to make up the crime consist of a

perception of the fact that Connie Peria resorted to or was

on the premises for the purpose of unlawfully having sexual

intercourse and the knowing sufferance of her to be there

for that purpose. Given Connie Peria’s employment as a

dancer and entertainer, petitioner would naturally have

expected her to be on the premises, even if it could be

found that he knew she was there on the date in question.

However, no evidence was presented even of that fact.

The Altenhaus case is particularly instructive on the strict-

ness of the knowledge requirement and a comparison of the

evidence in each case shows that the requirement was not

met here.

The Appeals Court, in its decision affirming the con-

viction, implicitly acknowledged the lack of evidence of

petitioner's knowledge of the requisite purpose by relying

upon facts which clearly do not establish such knowledge.

First, the Appeals Court asserted that the evidence in the

case indicates a transaction for sexual services undertaken

openly at the bar. No evidence was introduced as against

petitioner that there was a transaction for sexual services.

Mr. Wolfe's testimony concerning his conversation with Miss

Peria was excluded as against petitioner.'* Accordingly, the

Appeals Court, as well as the jury, could not rely upon it to

support the conviction. Moreover, there was no showing

that the transaction, if one could be found to have oc-

“See n. 6 and accompanying text, supra.

curred, was “open.” Without the type of inquiry required

by Commonwealth v. Scagliotti, supra, the Appeals Court's

characterization of the transaction as “open” is without

support. Finally, the prohibition of c. 272, § 6, is against a

purpose of engaging in the act under circumstances which

would constitute that act as unlawful.

Secondly, the Appeals Court asserts that the transaction

was undertaken by persons “normally under the direct

supervision of the defendeut.” Jd. at 129 (App. B at

p. 13a). This statement constitutes an implicit recognition

that there was no evidence that the employees were under

the direct supervision of the petitioner at the time that any

transaction or unlawful act occurred. There was no evi-

dence in the case showing that unlawful acts had occurred

at any other time such as might give rise to an inference of

complicity by the petitioner in this particular conduct.

Finally, the Appeals Court refers to “all the other circum-

stances in the case” from which the jury could reasonably

conclude that the petitioner was aware of and acquiesced in

the unlawful conduct. Jd. at 129 (App. B at p. 13a). No

such other circumstances are recited in the opinion nor was

there evidence of such other circumstances in the record.

The mere statement does not make up for the missing proof.

For the foregoing reasons, petitioner asserts that there

was no or insufficient evidence of his knowledge of the un-

lawful act and, therefore, that his conviction violates the

Due Process Clause of the Fourteenth Amendment.

C. There was No Corroboration as Required by

General Laws c. 272, § 11.

Massachusetts General Laws c. 272, § 11, requires that a

defendant shall not be convicted of a violation of c. 272,

§ 6, upon the testimony of one witness only unless that wit-

ness’ testimony is corroborated in a material particular.

That section, therefore, creates a substantive rule of law

enuring to the benefit of defendants to charges under

c. 272, § 6, and giving them an affirmative protection

against conviction if the statute is not satisfied. That right

is a right protected by the Due Process Clause of the

Fourteenth Amendment, the satisfaction of which presents a

federal question. Mere assertion by a state court that the

requirements of the statute have been met cannot escape

review, any more than a state court's assertion that there is

sufficient evidence to convict a defendant can escape review

against a challenge that the conviction was based upon no

or insufficient evidence.

In this case, the only corroboration consisted of the police

officers’ observations of Peria and Wolfe emerging from the

darkened room of the lounge and their discovery of a bottle

of champagne and two glasses in a booth in that lounge.

The Appeals Court assertion that these observations con-

stituted corroboration, within the meaning of the statute, of

the fact that an act of fellatio occurred in the darkened

room is preposterous. There is no logical or legal relevancy

between the facts corroborated and the material particular

which must be corroborated in order to find that the statute

has been satisfied. This corroboration is no more than was

found inadequate in Commonwealth v. Williams, 353

Mass. 233 (1967), where the court held that a defendant's

admission that he was re ee SS ee

under this statute. It is yt from Commonwealth v.

DeBrosky, 363 Mass. 718 (1973), that the corre

requirement of c. 272, § 11, » en cult eee

which can only be satisfied by corroboration of the defend-

ant’s knowledge of the purpose for which the female is

alleged to have resorted to the premises. Cf. id. at 729.'°

For the foregoing reasons, petitioner contends that his

conviction was returned and affirmed without satisfaction

of the corroboration requirement of c. 272, § 11, in that

there were no or insufficient facts to establish such cor-

roboration. Accordingly, his conviction violates the Due

Process Clause.

III]. Te Instructions To THE Jury Deprivep PetirioneR

or Dus Process or Law.

Petitioner made several requests for instructions to the

jury which were denied by the trial justice. In addition, he

took exception to several instructions actually given by the

justice. In addressing these issues on appeal, the Appeals

Court did not independently state its reason for overruling

petitioner's objection on each point raised, but instead

asserted that the charge as a whole did not deprive him of

his rights. See Commonwealth v. Bucaulis, supra, at 133

(App. B at pp. 16a-17a).

A. The Trial Justice Failed to Instruct as Requested

that the Term “Sexual Intercourse” Refers to the Natur-

al Act of Coition or Copulation and does Not Refer

to Types of Sexual Acts Other than that Act and Erred

by Instructing that the Term “Sexual Intercourse”

Includes Unnatural Acts.

Petitioner requested an instruction derived from Com-

monwealth v. Delanu, supra, that sexual intercourse is the

natural act of coition or copulation. The trial justice

refused to give this instruction and instructed that sexual

intercourse refers to both sexual intercourse and unnatural

sexual intercourse, as those terms are used in the rape

statute. For the reasons set forth in Argument I.A., such

instructions were erroneous and expanded the scope of the

statute beyond its meaning as of the date of the offense.

This expanded scope permitted the jury to find petitioner

guilty of an act which was not within the reach of the

statute on the date of the alleged offense and, therefore,

deprived him of due process of law. See Argument I.A.,

supra.

B. The Trial Justice Refused to Instruct the Jury as

Requested by the Petitioner or by Any Other Instruc-

tion that They were Required to Determine the Issue

Whether the Act which Occurred was Unlawful and

that Sexual Intercourse Between Unrelated, Consenting

Adults in Private is Not Unlawful; He Further Failed to

Instruct as Requested or by Any Other Instruction as

to the Circumstances under which the Jury Could

Find that the Act was Committed in Private.

As is set forth in Argument I.B., supra, it is the law of

the Commonwealth that an act of fellatio which occurs

between consenting adults and in private is not unlawful.

See Commonwealth v. Balthazar, supra. In order to show

that the act was unlawful, the Commonwealth bears the

burden of proving that the act was either nonconsensual or

not in private because those elements are material elements

of the offense. See Commonwealth v. Scagliotti, supra;

Commonwealth v. Reilly, supra. The failure of the trial

justice to require the jury to determine whether the act was

between consenting adults and in private eliminated the

prosecution's burden of establishing its case-in-chief. It ic a

matter of constitutional law that the state must prove every

fact necessary to establish the material elements with which

a defendant is charged in order to maintain his conviction.

See Mullaney v. Wilbur, 421 U.S. 684 (1975); In re Win-

ship, 397 U.S. 358 (1970). The elimination of this obliga-

tion on the part of the Commonwealth violated petitioner's

rights to due process of law.

C. The Trial Justice Failed to Instruct as Requested or

by Any Other Instruction that the Jury Must Find that

Petitioner Knew the Female’s Unlawful Purpose in

Being on the Premises Before they Could Find him

Guilty and that Such Proof Required a Finding that

the Petitioner Perceived or was Aware of her Unlawful

Purpose in Being on the Premises.

As is set forth in Argument II.B., supra, it is a matter of

law of the Commonwealth that proof of knowledge requires

proof that petitioner perceived or was aware of the facts

requisite to make up the crime. In this case the Common-

wealth was required to prove that petitioner perceived or

was aware of Connie Peria’s unlawful purpose in being on

the premises. Petitioner requested an instruction so charg-

ing the jury. The trial justice refused to give that instruc-

tion or any other instruction requiring the jury to make a

finding that petitioner perceived or was aware of Connie

Peria’s unlawful purpose in being on the premises before

they could find him guilty. The failure so to instruct

constitutes a constitutional deprivation because it eliminated

the need for the jury to make an affirmative determination

of a material element of the offense before they could find

petitioner guilty.

Conclusion.

For the reasons stated, the petitioner urges this Court to

grant the petition for a writ of certiorari to the Appeals

Court of the Commonwealth of Massachusetts.

Respectfilly submitted,

MORRIS M. GOLDINGS,

KENNETH H. TATARIAN,

MAHONEY, HAWKES & GOLDINGS,

500 Boylston Street,

Boston, Massachusetts 02116.

(617) 261-2300

Appendix A.

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS: SuPEeRIOR Court

No. 06285

COMMONWEALTH OF MASSACHUSETTS

vo.

GEORGE M. BUCUVALAS

Motion to Dismiss the Complaint.

Now comes the Defendant and moves to dismiss the Com-

plaint in the above-captioned matter and urges as grounds

therefor the following:

1. The statute under which this Complaint is brought is

unconstitutionally vague and overbroad in violation of the

First, Fourth and Fourteenth Amendments to the United

States Constitution and Articles XII, XIV and XVI of the

Declaration of Rights of the Constitution of the Common-

wealth and infringes on rights protected by said Amend-

ments and Articles.

2. The statute under which this Complaint has been

brought does not, as a matter of statutory construction,

apply to one who permits or knowingly suffers an adult

female to resort to or be in or upon a place for the purpose

of having consensual sexual intercourse with an adult male.

3. A person may not be convicted of a violation of G.L.

c. 272 § 6 where the only evidence of unlawful acts on the

premises does not include the act of sexual intercourse.

4. The Complaint fails to set forth a crime or offense

plainly and fully, substantially and formally as required by

Article XII of the Declaration of Rights of the Constitution

of the Commonwealth.

Wuenrerore, the Defendant urges that this Honorable

Court dismiss the above-numbered Complaint against him.

By his Attorneys,

MORRIS M. GOLDINGS

KENNETH H. TATARIAN

Manoney, Hawkes & GOoLDINGS

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS: SuPERIOR COURT

No. 06285

[Title omitted in printing. ]

Defendant’s Requests for Instructions to the Jury.

The Defendant requests that the Court include the follow-

ing among its instructions to the jury:

19. In determining whether the facts establish beyond a

reasonable doubt that Miss Peria was there for the purpose

of unlawfully having sexua! intercourse, you should consider

the fact that the Commonwealth has presented no testimony

that an act of sexual intercourse occurred. Sexual inter-

course is a particular type of sexual act. It is the natural

act of coition or copulation. The term sexual intercourse

does not refer to types of sexual acts other than the natural

act of coition or copulation. See Commonwealth v.

Delano, 197 Mass. 166 (1908); Commonwealth v. Lynes,

142 Mass. 557 (1886).

21. If you find beyond a reasonable doubt that Miss

Peria was on the premises of the Two O’Clock Lounge for

the purpose of unlawfully having sexual intercourse, then

you must decide whether Mr. Bucuvalas knew that she was

there for that purpose. You can find that Mr. Bucuvalas

knew that she was there for that purpose only if you are

convinced beyond a reasonable doubt that he perceived or

was aware of the fact that that was her purpose in being

there. If you do not find that he had such knowledge of

her purpose, then you must find Mr. Bucuvalas not guilty.

See Commonwealth v. Altenhaus, 317 Mass. 270 (1944).

22. If you find that Miss Peria’s purpose was to engage

in sexual intercourse on the premises, then you must deter-

mine whether that sexual intercourse was unlawful. Under

our laws, sexual intercourse between unrelated, consenting

adults in private is not unlawful. If you find that any

sexual intercourse which occurred was between consenting

adults under circumstances which would give a reasonable

expectation of privacy to their conduct then you must find

that the sexual intercourse was not unlawful. Unless you

find that the sexual intercourse was unlawful, you must find

Mr. Bucuvalas not guilty. Commonwealth v. Balthazar,

318 N.E.2d 478 (Mass. 1974).

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS. SuPERIOR COURT

No. 06285

[Title omitted in printing. ]

Defendant’s Assignment of Errors.

The Defendant respectfully assigns as errors with respect

to the above-numbered Complaint the following:

1. The Superior Court justice erred in denying the

Defendant’s Motion to Dismiss the Complaint on the

grounds that: (1) the statute under which the Complaint

was brought is unconstitutionally vague and overbroad in

violation of the First, Fourth and Fourteenth Amendments

to the United States Constitution and Articles XII, XIV and

XVI of the Declaration of Rights of the Constitution of the

Commonwealth in that the statute fails to provide adequate

notice to persons of the conduct prohibited or adequate

guidance to the trier of fact and impermissibly infringes on

rights protected by said Amendments and Articles; (2) the

statute under which the Complaint was brought does not,

as a matter of statutory construction, apply to one who

permits or knowingly suffers an adult female to resort to or

be in or upon a place for the purpose of having consensual

sexual intercourse with an adult male; and (3) that the

Complaint fails to set forth a crime or offense plainly and

fully, substantially and formally, as required by Article XII

of the Declaration of Rights of the Constitution of the

Commonwealth.

Tr. 26, Exception 1.

Defendant’s Motion to Dismiss the Complaint.

5. The Superior Court justice erred in denying the

Defendant’s Motion for a Directed Verdict made upon the

close of the Commonwealth’s case, on the grounds that:

(1) there was insufficient evidence from which the jury

could find beyond a reasonable doubt: (a) that Connie

Peria had resorted to or was in or upon the premises for the

purpose of unlawfully having sexual intercourse, (b) that

Defendant Bucuvalas knowingly suffered Connie Peria to

resort to or be in or upon the premises for said purpose, or

on the premises with another person or had offered to have

such unlawful sexual intercourse; (2) there was no corrobo-

ration in a material particular as required by G.L. c. 272

§ 11; (3) G.L. ec. 272 § 6 does not, as a matter of statutory

construction, reach even the knowing sufferance of an adult

female to be upon premises for the purpose of engaging in

private consensual sexual intercourse with an adult male;

and (4) G.L. c. 272 § 6, as applied to the Defendant, is

unconstitutionally vague and overbroad for the reasons

stated in Assignment of Error No. 1(1).

Tr. 244, Exception 8.

Motion for Directed Verdict of Not Guilty.

6. The Superior Court justice erred in denying the

Defendant's Motion for a Directed Verdict made upon the

close of all the evidence on the same grounds as are stated

in Assignment of Error No. 5.

Tr. 245, Exception 10.

Motion for Directed Verdict of Not Guilty.

8. The Superior Court justice erred in instructing the

jury that sexual intercourse between married persons is

lawful but that sexual intercourse between unmarried

persons or between a married person and an unmarried

person or between any two persons one of whom is a prosti-

tute, even if such acts are consensual and in private, is

unlawful and in failing to instruct the jury in accordance

with Paragraph 22 of Defendant’s Requests for Instructions

to the Jury on the grounds that the instructions given and

the failure to instruct in accordance with Paragraph 22,

individually and together: (1) gave the jury an erroneous

standard by which to determine whether the sexual conduct

was unlawful and failed to instruct the jury in accordance

with the prevailing standard of the lawfulness of sexual

intercourse between adults; (2) deprived the Defendant of

due process of law as guaranteed by the Fourteenth Amend-

ment to the United States Constitution and Article XII of

the Declaration of Rights of the Constitution of the

Commonwealth; and (3) subjected the Defendant to the

retroactive application of criminal law in violation of

Article I § 10 and the Fourteenth Amendment to the United

States Constitution and Article XII of the Declaration of

Rights of the Constitution of the Commonwealth.

Tr. 312, Exception 13.

Defendant’s Requests for Instructions to the Jury, Para-

graph 22.

9. The Superior Court justice erred in instructing the

jury, by reference to the statute defining the crime of rape,

that unnatural sexual intercourse is unlawful and is a form

of sexual intercourse on the grounds that such instruction:

(1) was entirely unrelated to the charge against the

Trt.

Defendant and was prejudicial to the Defendant and

confusing to the jury; (2) impermissibly suggested that the

term “sexual intercourse” in G.L. c. 272 § 6 applied to

sexual conduct other than the entry of the male sexual

organ into the female sexual organ; (3) deprived the

Defendant of due process of law as secured by the Four-

teenth Amendment to the United States Constitution and

Article XII of the Declaration of Rights of the Constitution

of the Commonwealth; and (4) subjected the Defendant to

the retroactive application of criminal law in violation of

Article I § 10 and the Fourteenth Amendment to the United

States Constitution and Article XII of the Declaration of

Rights of the Constitution of the Commonwealth.

Tr. 313, Exception 14.

15. The Superior Court justice erred in failing to

instruct the jury in accordance with Paragraph 19 of

Defendant’s Requests for Instructions to the Jury on the

grounds that the failure to so instruct left the jury without a

correct definition of the term “sexual intercourse” as used in

G.L. c. 272 § 6 and permitted the jury to convict the

Defendant of a crime other than that charged in the

Complaint in violation of Defendant’s rights to due process

of law under the constitutional provisions stated in Assign-

ment of Error No. 10.

Tr. 314, Exception 17.

Defendant’s Requests for Instructions to the Jury, Para-

graph 19.

17. The Superior Court justice erred in failing to

instruct the jury in accordance with Paragraph 21 of

Defendant’s Requests for Instructions to the Jury on the

grounds that the failure to so instruct left the jury without a

definition of or standard for determining whether the

Defendant had the requisite knowledge of the purpose for

which Miss Peria was alleged to have resorted to or been

upon the premises and permitted the jury to find the

Defendant guilty without a determination that the Defend-

ant perceived or was aware of the facts which constituted

the offense in viclation of Defendant’s rights to due process

of law under the constitutional provisions stated in Assign-

ment of Error No. 10.

Tr. 314, Exception 17.

Defendant’s Requests for Instructions to the Jury, Para-

graph 21.

~ -

Appendix B.

APPEALS COURT.

COMMONWEALTH vs. GEORGE Bucau.Is.'

Suffolk. January 9, 1978. — February 24, 1978.

Present: Hare, C.J., Kevi.ie, & Brown, JJ.

Prostitution, Maintaining premises for. Constitutional Law, Vague-

ness of statute. Practice, Criminal, Charge to jury. Evidence, Form

of question. Wéitness, Corroboration. Words, “Sexual intercourse.”

CoMPLAINT received and sworn to in the Municipal Court

of the City of Boston on October 15, 1976.

On appeal to the Superior Court the case was tried before

Lappin, J.

Kenneth H. Tatarian (Morris M. Goldings with him) for

the defendant.

Timothy P. O'Neill, Assistant District Attorney, for the

Commonwealth.

Hae, C.J. The defendant was convicted in a District

Court on a complaint charging him with knowingly having

suffered the presence of certain females for the purpose of

unlawfully having sexual intercourse in premises under his

control in violation of G. L. c. 272, § 6. Upon claiming an

appeal the defendant was again tried along with one

Connie Peria before a jury in the Superior Court.* He was

again found guilty of violating G. L. c. 272, § 6, and now

appeals, arguing several assignments of error.

‘We adopt the spelling of the defendant's surname which appears in

the criminal complaint, while noting that in the pleadings and memo-

randa submitted by the defendant's attorney the name is spelled “Bucu-

valas” and that elsewhere in the record the name also appears as

“Bucaualis.” [Note: The correct spelling of the defendant's surname is

“Bucuvalas.”]

*Peria was charged with and found guilty of the offense of prosti-

tution. She has not appealed.

10a

1. We address first the defendant’s claim that the judge

erred in denying his motions for a directed verdict of not

guilty and his motion to set aside the verdict of guilty in

that the Commonwealth had failed to present sufficient

evidence from which the jury could have concluded that the

defendant was guilty of the offense charged. This conten-

tion leads us to inquire whether the evidence, read in the

light most favorable to the Commonwealth, was sufficient

to warrant a finding of guilty. Commonwealth v.

Mangula, 2 Mass. App. Ct. 785, 786 (1975).

There was evidence admitted against the defendant from

which the jury could have found the following facts. The

defendant was the president and a director of the United

Food Corporation, which does business as the Two O’Clock

Lounge in the “Combat Zone” of Boston. The defendant

also served as manager and principal representative of the

lounge with full authority to control the premises described

in the liquor license. As manager, the defendant was

usually present and in charge of the lounge during business

hours. He was present in the lounge during the events at

issue in this case.

The defendant’s managerial responsibilities included

arranging for entertainment and keeping track of all the

“girls” who were employed by the lounge. The primary

form of entertainment in the lounge was provided by

female performers who stripped and danced in the nude.

When those entertainers were not performing, they mingled

with the customers and attempted to convince them to

purchase bottles of champagne at prices ranging from $6.25

to $150. Peria was employed by the lounge as such a

performer at a salary of $100 a week.

In the late afternoon of October 14, 1976, a male

customer, one Wolfe, spoke with a barmaid in the main

room of the lounge. As the result of that conversation the

OE eee ee ~~ ee .

oe te on ee : -

lla

barmaid summoned Peria, who appeared wearing a white

negligee. Wolfe then had a conversation with Peria and

the barmaid, as the result of which Wolfe paid Peria $50.

She in turn gave the money to the barmaid. Peria then led

Wolfe into a room in the back of the lounge. That room

was darkened and otherwise unoccupied, as the bar located

therein was not usually in operation during the afternoon.

In a booth in that room Peria performed an act of fellatio

on Wolfe. A champagne bottle and two glasses were later

found in the booth. The bottle was partially empty, and

there was champagne in each of the glasses.

At about 4:00 p.m. two police officers attached to the

vice control unit of the Boston police department entered

the lounge and were met by the defendant. The three

proceeded to the rear of the premises and were engaged in

conversation when Peria, clad in a white negligee, came

running from the back room. About ten to fifteen seconds

later Wolfe emerged from the same room. Wolfe immedi-

ately addressed the officers and the defendant, claiming

that after the completion of the act of fellatio he had

discovered that his wallet was missing and that it had been

stolen.*

As a result of the information gathered by the officers in

this conversation, criminal complaints issued against Peria

and the defendant.

The offense defined by G. L. c. 272, § 6,‘ may be

analyzed as requiring the proof of three elements: (1) that

*Wolfe testified that he found the wallet in his pocket when he

arrived at his home.

‘General Laws c. 272, § 6, reads as follows: “Whoever, being the

owner of a place or having or assisting in the management or control

thereof, induces or knowingly suffers a female to resort to or be in or

upon such place, for the purpose of unlawfully having sexual inter-

course, shall be punished as provided in section three.”

12a

the defendant owned, managed or assisted in the manage-

ment or control of certain premises; (2) that a female was

present on those premises for the purpose of unlawfully

having sexual intercourse, and (3) that the defendant

induced or knowingly suffered the female’s presence on the

premises for that purpose. We consider the evidence intro-

duced by the Commonwealth in this case to be sufficient to

support the jury’s finding that the defendant was guilty of

the alleged offense. See Commonwealth v. Martin, 304

Mass. 320, 322 (1939).

The defendant does not seriously contend that the

Commonwealth failed to present sufficient evidence as to

the first element of the offense. There was ample evidence

of the defendant’s management and responsibility for the

lounge premises. The defendant does, however, challenge

the sufficiency of the evidence on the second element. He

argues that the Commonwealth proved only that Peria was

employed by the lounge as an entertainer and that at most

the evidence indicates Peria’s willingness to engage in sexual

activity rather than her “purpose” to be so engaged. We

do not agree. Peria’s employment as an entertainer in the

lounge does not rule out the inference that her duties also

included the performance of sexual services. Given the

type of establishment, Peria’s occupation and costume, and

her response to the barmaid’s call and subsequent perform-

ance of jellatio for payment, it was open for the jury to

determine as a matter of fact that Peria was available for

sexual intercourse with customers who desired such service.

The defendant also challenges the sufficiency of the

evidence introduced by the Commonwealth with regard to

the third element of the offense. He cites the case of

Commonwealth v. Altenhaus, 317 Mass. 270, 273 (1944),

for the proposition that the proof of knowledge required to

support a verdict of guilty in certain criminal offenses is not

owe

ee ee

13a

made out when the facts proven are as consistent with an

innocent explanation as with a guilty one. The defendant

claims that as there was no evidence that he either partici-

pated in or was aware of the transaction between Peria,

Wolfe and the barmaid, the Commonwealth’s evidence

could fairly be characterized as establishing both his ignor-

ance of the transaction and his innocence of the offense.

We regard the Altenhaus case as distinguishable on its

facts. The evidence in the present case indicates a trans-

action for sexual services performed on licensed premises,

which was undertaken openly at the main bar of the lounge

during regular business hours by two employees normally

under the direct supervision of the defendant. In view of

the apparent openness of this transaction the jury could

reasonably infer that the fifty dollars paid to the barmaid

was payment for more than champagne and that the lounge

made a profit on the sexual aspects of the transaction.

Given these and all the other circumstances in the case, the

jury could reasonably conclude that the defendant, as

manager of the lounge, was aware of and acquiesced in his

employees’ illicit sexual activities.

2. The defendant also contends that his motions for a

directed verdict of rot guilty and his inotion to set aside the

verdict of guilty should iuav. veen allowed on the ground

that the Commonwealth had failed to satisfy the require-

ment under G. L. c. 272, § 11, that “[a] person shall not

be convicted under sections two to six [of chapter 272],

inclusive, upon the evidence of one witness only, unless his

testimony is corroborated in a material particular.” We do

not agree that the quoted provision had any application in

the circumstances of this case.

The testimony of two police officers regarding their

observations of Peria’s and Wolfe’s emergence, within

seconds of each other, from the back room of the lounge

l4a

and the officers’ discovery of a bottle of champagne and

two glasses in a booth in the back room served to corrobo-

rate Wolfe’s testimony as to what transpired between Peria

_ and himself. This in turn constituted sufficient corrobora-

tion of a “material particular” of Wolfe’s testimony for the

purposes of G. L. c. 272, § 11. Cf. Commonwealth v.

Taschetta, 252 Mass. 158, 160 (1925) (testimony by defense

witnesses that defendant had taken a woman to a house in

Springfield and that she had subsequently left with him,

found sufficient in relation to G. L. c. 272, § 11, to

corroborate woman’s testimony of defendant’s conduct

while in the house in prosecution for violation of G. L.

c. 272, § 2). There was no error in the denial of the

motions.

3. The defendant argues next that G. L. c. 272, § 6, the

statute under which he was charged, is impermissibly vague

in violation of both the Fourteenth Amendment to the

United States Constitution and art. 12 of the Declaration of

Rights. He claims that the standard defined under the

statutory prohibition of a “purpose of unlawfully having

sexual intercourse” is so ambiguous as to preclude fair notice

or warning to potential offenders of the type of conduct

which is proscribed. In addition to this alleged facial

invalidity, the defendant contends that the statute is imper-

missibly vague as applied to the circumstances of this case.

He claims that in light of recent rulings that certain penal

statutes do not reach sexual conduct which occurs between

consenting adults in private, see e.g. Commonwealth v.

Balthazar, 366 Mass. 298, 302 (1974), habeas corpus

granted sub nom. Balthazar v. Superior Court, 428 F.

Supp. 425 (D. Mass. 1977), he could not have been on

notice that it was “unlawful” for Peria to engage in sexu-

al activity with Wolfe in a darkened and otherwise un-

occupied room. The defendant argues finally that the

et OTE a

a. He ar ime

l5a

term “sexual intercourse,” as employed in the statute, is

commonly understood as describing only the act of coition;

and the present construction of that term as including the

act of fellatio, which is necessary to support the defendant's

conviction in this case, was unforeseeable and is therefore in

violation of his due process rights. See Bouie v. Columbia,

378 U.S. 347, 352 (1964).

As there are no First Amendment issues involved in the

defendant’s challenge to the statute, we examine his claim

of statutory vagueness solely in relation to the facts of the

case at hand. United States v. Mazurie, 419 U.S. 544, 550

(1975). Commonwealth v. Gallant, ___. Mass. ,

(1977) [Mass. Adv. Sh. (1977) 2254, 2259]. Having done

so, we conclude that the standard set by G.L. c. 272, § 6, is

sufficiently comprehensible for the defendant to have been

on notice of the unlawfulness of his conduct in this case.

See Coates v. Cincinnati, 402 U.S. 611, 614 (1971); Com-

monwealth v. Jarrett, 359 Mass. 491, 496-497 (1971).

By performing sexual acts for hire Peria committed the

offense of prostitution.’ Sexual conduct of that nature is

manifestly unlawful. Commonwealth v. King, __. Mass.

, - (1977) [Mass. Adv. Sh. (1977) 2636, 2642-

2643]. Those privacy rights which might be recognized

with regard to certain sexual conduct engaged in between

consenting adults in private cannot be raised in defense of

the commission of prostitution on premises to which the

public has access. Id. at __ [Mass. Adv. Sh. (1977) at

2646]. The conduct of the defendant and his employees

falls squarely within the “hard core” of the statute’s prohibi-

tions. He cannot complain of the potential constitutional

dubiety of G.L. c. 272, § 6, when applied to certain border-

*See footnote 2, supra.

l6a

line situations. Commonwealth v. Orlando, __ Mass.

; (1977) [Mass. Adv. Sh. (1977) at 84, 87].

Moreover, the defendant's contention that his due process

rights were violated by the construction of the statutory

term “sexual intercourse” to include the act of fellatio is also

without merit. The meaning of the language of a statute

may be measured by common understanding and practice.

Commonwealth v. Jarrett, supra at 497. Commonwealth

v. Balthazar, 366 Mass. at 300. The term “sexual inter-

course” has commonly been employed to describe a variety

of sexual conduct, including the act of fellatio. See G.L.

c. 265, §§ 22, 23; Commonwealth v. Gallant, supra at

[Mass. Adv. Sh. (1977) at 2263] (defining “natural”

and “unnatural” intercourse under G.L. c. 265, § 23).

There is nothing before us which indicates that the act of

fellatio was previously considered to be outside the scope of

the statute. See Rose v. Locke, 423 U.S. 48, 53 (1975).

We accordingly conclude that the defendant should have

understood that his conduct was in violation of the statute.

See Colten v. Kentucky, 407 U.S. 104, 110 (1972); Com-

monwealth v. Klein, __. Mass. , (1977) [Mass.

Adv. Sh. (1977) 1393, 1405] (dictum).

4. The defendant next assigns as error several portions

of the judge’s instructions to the jury, particularly with

regard to the judge’s refusal to charge in accordance with

certain requests for instructions. After having reviewed the

charge as a whole, Commonwealth v. Pinnick, 354 Mass.

13, 15 (1968), we conclude that the judge’s instructions to

the jury were both fair and complete. As certain of the de-

fendant’s requests for instructions on the definition of the

words “unlawful sexual intercourse” were either at odds

with the law of the Commonwealth or unsupported by the

evidence in the case, the judge was correct in declining to

give them. Commonwealth v. Kleciak, 350 Mass. 679,

a eee ee ee

17a

691-692 (1966). The remaining requests for instructions

were substantially covered in the judge’s charge. The judge

was not bound to instruct the jury in the exact language

suggested by the defendant. Commonwealth v. Aronson,

330 Mass. 453, 458 (1953). Commonwealth v. Edmonds,

365 Mass. 496, 506 (1974).

5. The defendant objects last to the judge’s ruling which

permitted one of the police witnesses to respond in direct

examination to the assistant district attorney's query: “Are

you familiar with the method of operation of the Two

O’Clock Lounge?” The judge overruled the defendant’s

objection to the question and denied the defendant’s request

that the Commonwealth be required to make an offer of

proof.’ The defendant now claims that, by allowing the

witness to respond to so broad a question, the judge made it

possible for the witness to interject prejudicial and otherwise

incompetent evidence before the jury.

Decisions as to the form and relevancy of questions in the

examination of witnesses are within the discretion of the

trial judge. Commonwealth v. Slaney, 345 Mass. 135, 142

(1962). Commonwealth v. Barras, 3 Mass. App. Ct. ___.,

(1975) [Mass. App. Ct. Adv. Sh. (1975) 193, 198]. In

view of the judge’s limitation of the scope of the question’

and his close scrutiny of the subsequent testimony by the

witness, we perceive no abuse of discretion; nor was there

prejudice to the substantial rights of the defendant resulting

*The defendant excepted only to the judge’s denial of the request for

an offer of proof.

"In response to the defendants’ objections to the question the judge

stated, “He [the witness] may testify as to his observations as to how it

is run, what takes place there, whether there are shows there, whether

there is entertainment, whether there are B-girls, all of which if he

knows he may testify.” The witness had previously testified that he had

been in the lounge “hundreds of times” pursuant to his duties as a vice

control officer.

18a

from the allowance of the assistant district attorney's ques-

tion in that form. See Commonwealth v. Greenberg, 339

Mass. 557, 580-581 (1959), and cases cited.

Judgment affirmed.

aoe me ee oo

19a

Appendix C.

COMMONWEALTH OF MASSACHUSETTS

ApPpEALS COURT FOR THE COMMONWEALTH,

At Boston, February 24, 1978.

IN THE CASE OF COMMONWEALTH vs. GEORGE

BUCAULIS, pending in the Superior Court for the County

of Suffolk.

Orperep, that the following entry be made in the docket;

viz., — Judgment affirmed.

By THE Court,

JOHN E. POWERS,

Clerk.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.