Petition — Lunati v. Tennessee

83-1411

IN THE

SUPREME COURT OF THE UNITED STA BS ean

October Term, 1983

No.

ANTHONY ERNEST LUNATI,

RALPH P. LUNATI AND

FREEWHEELIN SOCIAL CLUB,

Petitioners,

V.

STATE OF TENNESSEE,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF TENNESSEE

ALAN BRYANT CHAMBERS

Attorney for Petitioners

140 Jefferson Avenue

Memphis, Tennessee 38103

901-525-4297

TOMMY H. JAGENDORF

Attorney for Petitioners

Suite 305, 5118 Park Avenue

Memphis, Tennessee 38117

901-682-0115

N. ALAN LUBIN

Attorney for Petitioners

140 Jefferson Avenue

Memphis, Tennessee 38103

901-525-4384

I.

QUESTIONS PRESENTED FOR REVIEW

(1) Whether the Supreme Court erred in fail-

ing to reverse the Court of Criminal Appeals of

Tennessee and hold Tennessee Code Annotated,

Sections 39-2-631 and 39-2-633 unconstitutional as

being violative of the due process provisions of

the Fifth and Fourteenth Amendments to the United

States Constitution as well as violative of the

equal protection provisions of the Fourteenth

Amendment to the United States Constitution.

(A) Whether the Supreme Court of Tennessee

erred in failing to reverse the Court of Criminal

Appeals of Tennessee and hold Tennessee Code

Annotated, Section 39-2-633 unconstitutional as

being predicated upon and containing an impermis-

sible gender-based classification in violation of

the equal protection provisions of the Fourteenth

Amendment to the United States Constitution.

(2) Whether the Supreme Court cf Tennessee

erred im not reversing the Court of Criminal

Appeals of Tennessee and holding that the Peti-

tioners were denied a fair trial as guaranteed by

=

the Sixth Amendment and the due process clause

of the Fourteenth Amendment to the United States

Constitution.

% IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

No.

ANTHONY ERNEST LUNATI,

RALPH P. LUNATI AND

FREEWHEELIN SOCIAL CLUB,

Petitioners,

V.

STATE OF TENNESSEE,

Respondent.

. PETITION FOR WRIT OF CERTIORARI

od TO THE SUPREME COURT OF TENNESSEE

¥ Comes now the Petitioners, Anthony Ernest

Lunati, Ralph P. Lunati and Freewheelin Social

Club, and petition the Supreme Court of the

United States to review a decision of the

Supreme Court of Tennessee denying the Peti-

tioner's Application for Permission to Appeal

from a decision of the Court of Criminal Appeals

x® of Tennessee, and in support thereof would show .

7a unto the Court as follows:

tt.

PARTIES

The Petitioners, Anthony Ernest’ Lunati,

Ralph P. Lunati and Freewheel Social Club were

the Defendants in the Criminal Court of Shelby

County, Tennessee at Memphis, who were tried and

convicted for violation of Tennessee Code Anno-

tated (hereinafter referred to as T.C.A.), Sections

39-2-631 and 39-2-633. A text of said statutory

provisions is contained in the Appendices to this

Petition.

The Respondent, State of Tennessee, is the

sovereign, who through the District Attorney

General of Snelby County prosecuted the Petitioners

through entorcement of the statutes of the State

of Tennessee as promulgated by the Legislature of

the State of Tennessee.

VIII.

IIl.

TABLE OF CONTENTS

Questions Presented for Review 1

Parties 4

Table of Contents 5

Table of Authorities 7

Opinions Delivered in

Courts Below 9 7

Jurisdiction 10

Constitutional Privisions and

Other Applicable Privisions

of Law ll

Statement of the Case ll

A. Statement of the Facts 14

Reasons for Issuance of the

Writ 14

Conclusion 21

APPENDICES

Opinion of Court of Criminal Appeals :

of Tennessee, filed September 22, 1983 wd

Opinion of the Supreme Court of

Tennessee, filed December 27, 1983

First Amendment to the Constitution

of the United States A

Pifth Amendment to the Constitution ce

of the United States i

Fourteenth Amendment to the Constit-

ution of the United States

\ Ay 9

fies

Tennessee Code Annotated,

39-2-631

Tennessee Code Annotated,

39-2-633

IV.

TABLE OF AUTHORITIES

Ricks v. District of Columbia, 414

F.2d 1097 (D.c. Cir. 1968) (Ration-

ale of case applicable to analyzing

Tennessee statute)

Rose v. Locke, 96 S.Ct. 243, 46 L.Ed.

2a 185 (1975)

Grayned v. City of Rockford, 408 U.S.

104, 92 S.Ct. 2294, 33 L.Ed.2d 222

(1972)

Connally v. General Construction Com-

an EDG., 209 U.S. 3655 46 §.Ct. 126,

70 L.Ed. 322 (1926)

Lawrence v. Stanford, 655 S.W.2d 927

(Tenn. 1983)

Craig v. Boren, 429 U.S. 190, 50 L.Ed.

2d 397, 97 S.Ct. 451 (1976)

Califano v. Goldfarb, 430 U.S. 199, 97

S.C. Bese Vis77)

Caban v. v. Mohammed, 441 U.S. 380, 99

S.Ct. 1760 (1979)

Orr vy. Orr, 440 U.S. at 279, 99 8.Ct.

at llll 1979)

Tummey v. Ohio, 273 U.S. 510 (1927)

United States v. Springel, 103 F.2d,

876 (3rd Cir. 1939)

United States v. Freeman, 514 F.2d

1314 (1975)

16

16

16

17,18

19

19

19

19

21

21

21

Gordon v. United States, 344 U.S.

414 (1953) 21

Lindberg v. United States, 363 F.2d

438 (9th Cir., 1966) 21

t

@

'

a

we

Vv.

OPINIONS DELIVERED IN COURTS BELOW

Petitioners would show that there are two

primary opinions in this cause which have been

delivered by Courts below. On September 22, 1983,

the Court of Criminal Appeals issued its opinion

in response to the Appeal of tne Petitioners from

a jury verdict of guilty in the Criminal Court of

Shelby County, Tennessee.

The second formal opinion issued by a Court

below was issued by the Supreme Court of Tennessee

on December 27, 1983, denying the Application for

Permission to Appeal of the Petitioners from the

decision of the Court of Criminal Appeals of

Tennessee as stated above. An Application for

Permission to Appeal is analogous to s Petition

for Writ of Certiorari, ie., a discretionary

appeal.

These opinions are attached to this Petition

and encompassed within the Appendices as Appendi-

ces A and B, respectively.

VI.

JURISDICTION

Petitioners, Anthony Ernest Lunati, Ralph P.

Lunati and Freewheelin Social Club, pray for the

United States Supreme Court to review the

decision of the Supreme Court of Tennessee's

Genial of the Petitioners' Application for

Permission to Appeal from an opinion of the Court

of Criminal Appeals of Tennessee.

Petitioners did not pray for a rehearing in

the Supreme Court of Tennessee. Petitioners

would further state that they have not prayed for

an extension of time to perfect this Petition to

the United States Supreme Court pursuant to 28

U.S.C., Section 210l(c), and also, there is no

Cross-Petition for the Writ of Certiorari.

The statutory and/or jurisdictional basis

for the bringing of this Petition is Rule

17(1)(b) and (c) of the Rules of the Supreme

Court of the United States. Furthermore, this

Petition is filed pursuant to Rule 20 of the

Rules of the Supreme Court of the United States,

ats within sixty days of the Order of December

27, 1983 of the Supreme Court of Tennessee.

-10-

VII.

CONSTITUTIONAL PROVISIONS AND OTHER

APPLICABLE PROVISIONS OF LAW

Petitioners would show that they have been

denied substantial constitutional rights afforded

to them by the First Amendment, the due process

provisions of the Fifth and Fourteenth Amendments

and the equal protection provision of the

Fourteenth Amendment of the United States Consti-

tution. The denial of the constitutional rights

as predicated upon the enforcement by the State

of Tennessee of the Tennessee statutes commonly

known as T.C.A. 39-2-631 and T.C.A. 39-2-633. The.

First, Fifth and Fourteenth Amendments as well as

: T.C.A. 39-2-631 and 39-2-633 are made Appendices

C, D, E, F and G, respectively to this Petition.

VIII.

STATEMENT OF THE CASE

This Petition for Writ of Certiorari seeks

to review the denial of the Petiticners' Applica-

tion for Permission to Appeal to the Supreme

Court of Tennessee of December 27, 1983. The

. Application to the Supreme Court of Tennessee was

:

seeking a review of the Appellate opinion of the

Court of Criminal Appeals of Tennessee of

September 22, 1983 reviewing the trial and jury

verdict and the record thereof of the Criminal

Court of Shelby County, Tennessee. The jury

verdict was obtained in the Criminal Court of

Shelby County, Tennessee on May 6, 1982, wherein

the Petitioners, Anthony Ernest Lunati and Ralph

P. Lunati were found guilty of violation of

T.C.A. 39-2-633 and sentenced to serve a period

of incarceration of one and one-half years.

Petitioners, Anthony Ernest Lunati and Ralph P.

Lunati were also convicted in the trial court of

violation of T.C.A. 39-2-631 and fined $50.00

each. Petitioner, Ralph P. Lunati along with

Petitioner, Freewheelin Social Club were found

S

‘guilty of violation of the Tennessee Obscenity

Law. For purposes of this Petition said viola-

tions will not be specifically and heavily

addressed.

Petitioners, Anthony Ernest Lunati and Ralph

P. Lunati, in the trial court, moved to dismiss

the indictments predicated upon violations of

T.C.A. 39-2-631 and 1T.C.A. 39-2-633 in their

pre-trial motions filed timely with the trial

court on August 3, 1981 at pages two through

twenty-eight of the technical record of the

case. These motions were acknowledged by and

addressed in the opinion of the Court of

Criminal Appeals of Tennessee which is attached

as Appendix A to this Petition.

The issue of unconstitutionality of T.C.A.

39-2-633 predicated upon an impermissible gen-

Ger-based classification was asserted upon

appeal of the case as an additional ground of

unconstitutionality for the first time in the

proceedings, although properly, in accordance

with judicial law of Tennessee. Petitioners

will show later in this Petition the error of

the Tennessee Courts in failing to review said

issue.

As heretofore stated, the Court of Criminal

Appeals of Tennessee in its opinion of September

22, 1983 affirmed the jury verdict of the Crimi-

nal Court of Shelby County, Tennessee. There-

after, Petitioners timely filed with the Supreme

Court of Tennessee their Application for Permis-

oil Sus

sion to Appeal which Application was denied by

Order of December 27, 1983 which is attached to

this Petition as Appendix B.

It is from the above-mentioned opinion that

the Petitioners file the herein Petition for Writ

of Certiorari.

A.

Statement of the Facts

Petitioners, in an effort at brevity in this

Petition, would state and incorporate herein the

facts as enunciated in the opinion of the Court

of Criminal Appeals of Tennessee of September 22,

1983 which facts fairly approximate the events

that led to the conviction of the Petitioners in

the lower court.

IX.

REASONS FOR ISSUANCE OF THE WRIT

Petitioners would show that the Writ of

Certiorari should be allowed pursuant to the

considerations set forth in Rule 17(b) and (c) of

the Rules of the Supreme Court of the United

States. Petitioners maintain that the lower

courts in Tennessee have decided issues contrary

to law in existing opinions of the Federal Courts

alk ini

.

Asi well as applicable decisions of the United

States Supreme Court. In the alternative, the

Tennessee Courts have, by failing to rule or

review certain aspects of asserted error, also

allowed certain issues to stand which are in

conflict with decisions of this Supreme Court.

Petitioners contend that substantial consti-

tutional rights afforded them by the United

States Constitution have been violated by the

upholding of the jury verdict by the Tennessee

Appellate Courts as well as by denial of certain

pre-trial motions of the Petitioners in the

lower court.

T.C.A. 39-2-631 and 39-2-633 were asserted

to be unconstitutional as being vague and/or

overbroad and also violative of certain First

Amendment rights in that the term "“licentious

sexual intercourse without hire" was overbroad

and not clearly definitive on its face. Peti-

tioners would show this Court that the Court of

Criminal Appeals of Tennessee decided the issue

of constitutionality of the afore-mentioned sta-

. tutes erroneously and clearly contrary to deci-

: -15-

sions of the federal courts and specifically

contrary to opinions of this Court.

Petitioners rely upon the following cases

to support their position that a proper analysis

of T.C.A. 39-2-631 and T.C.A. 39-2-633 are

unconstitutional as being vague and/or overbroad

and violative of rights guarnteed by the due

process clauses of the Fifth and Fourteenth

Amendments to the United States Constitution as

well as the equal protection provision of the

Fourteenth Amendment to the United States

Constitution along with the First Amendment to

the United States Constitution:

Ricks v. District of Columbia, 414

F.2d 1097 (D.C. Cir. 1968) (Ration-

ale of case applicable to analyzing

Tennessee Statute)

Rose v. Locke, 423 U.S. 48, 96 S.Ct.

243, 46 L.Ed.2d 185 (1975)

Grayned v. City of Rockford, 408 U.S.

104, 92 S.Ct. 2294, 33 L.Ed.2d 222

(1972)

Connally v. General Construction Com-

any, 269 U.S. 385, 46 S.Ct. 126,

5 L.Ed. 322 (1926)

Petiticners would maintain that T.C.A. 39-

2-633 is unconstitutional as containing an inm-

permissible gender-based classification violative

ay

of the equal protection clause of the Fourteenth

Amendment to the United States Constitution.

. Reference to the specific language of the statute

is omitted herein as same is set forth in its

entirety as Appendix G to this Petition.

Although Petitioners asserted the unconstitu-

tionality of said statute during the motion stage

of the trial in the Criminal Court of Shelby County,

Tennessee, unconstitutionality based upon imper-

missible gender-based classification was specifi-

cally asserted by Appellate counsel in the appeal

of the Petitioners to the Court of Criminal

Appeals of Tennessee. The Court of Criminal Ap-

‘ peals acknowledged the issue but skirted or side-

stepped same when it stated:

"However, this issue was fot included in

the pre-trial motions or otherwise litigated

in the Trial Court. Therefore, the issue can-

not be considered by this Court.”

The Court of Criminal Appeals of Tennessee was

relying upon the recent Tennessee Supreme Court

case of Lawrence v. Stanford, 655 S.W.2d 927

(Tenn. 1983), which case specifically addressed

the issue of when unconstitutionality of a

statute can be asserted and at what stage of a Bs

g -17-

proceeding same can be asserted by a litigant.

It should be pointed out that the Court of

Criminal Appeals of Tennessee was remiss in its

quoting of the Supreme Court of Tennessee from

the Lawrence v. Stanford case, for the Supreme

Court of Tennessee and its opinion went further

when it actually said the following:

"It has long been the general rule

that questions not raised in the trial

court will not be entertained on appeal

and this rule applies to an attempt to

make a constitutional attack upon the

validity of a statute for the first

time on appeal unless the statute in-

volved is so obviously unconstitutional

on its face as to obviate the necessity

for any discussion.

Clearly the instant statute is so "obviously

unconstitutional on its face as to obviate the

necssity for any discussion". It is clearly

gender-based. A clear reading of the statute

can afford no reason for the exclusion of males

from the wording of said statute. Certainly no

governmental interest could be better interest

could be better served by inferring, from the

language of the statute, that women are any more

susceptible to being procured for prostitution

than are men.

Applying all tests set forth in decisions

from this Honorable Court regarding gender-

based classifications, Petitioners can find no

legitimate reason to classify women any differ-

ently than men under the intent and language of

the statute in question. Petitioners would rely

on the holdings in the below-listed authorities

to sustain its premise that T.C.A. 39-2-633 is

unconstitutional and violative of the equal

protection rights of the Petitioners in contain-

ing the impermissible gender-based classification

as alleged.

Craig v. Boren, 429 U.S. 190, 50 L.Ed2d

397, 97 S.Ct. 451 (1976)

Califano v. Goldfarb, 430 U.S. 199, 97

S.Ge.. 00a (aor)

Caban v. Mohammed, 441 U.S. 380, 99 S.Ct.

1760 (1979)

Orr v. Orr, 440 U.S. at 279, 99 S.Ct. at

llll (1979)

The Supreme Court of Tennessee in denying Pe-

titioners' Application for Permission to Appeal,

in essence, affirmed the Court of Criminal Ap-

peals of Tennessee in its incorrect failure to

review the issue of the impermissible gender-

-]9-

‘ ar

based classification. Petitioners would maintain

that such is a gross miscarriage of the Petition-

ers' right to a fair Appellate review of their

conviction. A review of the claim of unconstitu-

tionality of the Tennessee statute would seem

fair and appropriate by this Honorable Court.

Petitioners would further maintain that

their right to a fair trial is guaranteed by the

Sixth Amendment and the due process clause of the

Fourteenth Amendment to the United States Con-

Stitution was abridged by the numerous trial

errors which occurred during the course of the

trial of this cause. Such was asserted and

acknowledged by the Court of Criminal Appeals of

Tennessee and its opinion which is attached

hereto as Appendix A. Petitioners maintain that

the errors asserted, cumulatively, had a major

prejudicial effect on the outcome of the trial of

the Petitioners. Further, one need only read the

Opinion of the Court of Criminal Appeals of Ten-

nessee to question how many harmless errors must

eccur before one's (Right. to a fair trial is

abridged. Petitioners~would rely on the followin

authorities to support their position on this

.Ssue:

Tumey v. Ohio, 273 U.S. 510 (1927)

United States v. Sprengel, 103 F.2d

876 (3rd. Cir. 1939)

United States v. Freeman, 514 F.2d

1314 (1975)

Gordon v. United States, 344 U.S.

414 (1953)

Lindberg v. United States, 363 F.2d

438 (9th Cir., 1966)

X.

CONCLUSION

For the reasons set out in the foregoing

Petition, Petitioners conclude that there was a

gross and severe deprivation of their rights

secured by the United States Constitution. Pe-

titioners would further conclude that based upon

such deprivations, they were denied both sub-

stantive due process of law as well as equal

protection of the law. Wherefore, cetitioners

pray that the Supreme Court of the United States

grant this Petition for Writ of Certiorari and

allow the Petitioner to brief this matter to

this Honorable Court upon the merits.

RESP ULLY SUBMITTED,

N B

RYANT CHAMBERS

Attorney for Petitioners

147 Jefferson Avenue

Memphis, Tennessee 38103

901-525-4297

TOMMY H. JAGENDORF

Attorney for Petitioners

Suite 305, 5118 Park Avenue

Memphis, Tennessee 38117

901-682-0115

N. ALAN LUBIN

Attorney for Petitioners

140 Jefferson Avenue

Memphis, Tennessee 38103

901-525-4384

CERTIFICATE OF SERVICE ON COUNSEL

I, Alan Bryant Chambers, Attorney for Pe-

titioners, hereby certify that on the day

of February, 1984, I mailed three copies of

the foregoing Petition for Writ of Certiorari

to the Honorable William Leech, Attorney

General of the State of Tennessee, 450 James

Robertson Parkway, Nashville, Tennessee,

37219, by placing said copies in the hands of

employees of the United States Postal Service

and/or Federal Express for mailing, and paying

the postage thereon.

ALAN BRYANT CHAMBERS

o2t-

APPENDIX A

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

APRIL SESSION, 1983

STATE OF TENNESSEE,

!

APPELLEE,

!

vs.

1 NO.

59

! SHELBY COUNTY

| HONORABLE JOHN P. COLTON,

!SR., JUDGE

ANTHONY ERNEST LUNATI, 1

RALPH P. LUNATI AND

FREEWHEELIN SOCIAL CLUB, |

APPELLANTS.

FOR THE APPELLANTS:

Phillip E. Kuhn and

Barry W. Kuhn

Kuhn, Kuhn & Kuhn

Attorneys at Law

(For all appellants at

trial and Anthony Ernest

Lunati and Freewheelin

Social Club on appeal)

Suite 1704, Sterick Bldg.

8 N. Third Street

Memphis, Tennessee 38103

Tommy H. Jagendorf

Attorney at Law

(For the appellant, Ralph

P. Lunati, on appeal only)

Suite 305, 5118 Park Ave-

nue

Memphis, Tennessee 38117

N. Alan Lubin

Attorney at Law

(For the appellant, Ralph

P. Lunati, on appeal only)

140 Jefferson Avenue

Memphis, Tennessee 38103

! (Attempting to procure a

female to become a pro-

stitute; engaging in

prostitution; exhibition

of obscene materials;

and possession of ob-

scene materials)

FOR THE APPELLEE:

William M. Leech, Jr.

Attorney General

450 James Robertson Park-

way

Nashville, Tennessee 37219

Jennifer Helton Small

Assistant Attorney General

450 James Robertson Park-

way

Nashville, Tennessee 37219

Hugh W. Stanton, Jr.

District Attorney General

201 Poplar Avenue

Memphis, Tennessee 38103

Kathleen 0. Spruill

Asst. District Attorney General

201 Poplar Avenue

Memphis, Tennessee 38103

Edgar A. Peterson, IV

Asst. District Attorney General

201 Poplar Avenue

Memphis, Tennessee 38103

AFFIRMED AS MODIFIED

OPINION FILED: SEPT. 22, 1983

JERRY SCOTT, JUDGE

OPINION

The appellants were indicted along with

Tamara L. Caraway in seven separate indictments,

nf charging various offenses relating to prostitu-

tion and the possession and exhibition of obscene

films. In one case Anthony Ernest Lunati and

Ralph P. Lunati were charged with maintenance of

a house of ill fame, in violation of TCA §39-

6-100l(a)(4). They were acquitted of that charge.

in another case the Lunatis and Ms. Caraway were

charged with attempting to procure females to

become prostitutes in violation of TCA §39-

2-633. The Lunatis were convicted and received

sentences of not less than nor more than one and

7 one-half years in the state penitentiary. Ms.

Caraway was acquitted. In separate indictments

the Lunatis were charged with engaging in prosti-

tution and each received a fine of $50.00. In

three separate indictments Ralph Lunati was charged

with the exhibition of three obscene movies. He

was convicted of all three charges and received

tnree sentences of sixty days in the Shelby

County Correctional Center. Tne Freewheelin

Social Club was charged with and convicted of

possession of each of those films and was fined

$25,000.00 for each film. The trial judge ordered

Ralph Lunati's sentences to be served concur-

rently. In this appeal Ernest Lunati and Free-

wheelin Social Club have raised six issues. Ralph

Lunati has raised four issues with numerous sub-

issues. A brief recitation of the facts will

aid in the understanding of all of the issues.

The Lunatis operated the Freewheelin Social

Club in a converted residence at 3704 Summer

Avenue in Memphis. The club was described as a

swingers club, wherein the patrons could engage

in whatever sexual activities they desired. Two

undercover police officers, a male and a female,

infiltrated the club. They attended sessions on

three successive Saturday nights. Upon entering

they were greeted by Ms. Caraway and Ernest

Lunati. For a small fee they were allowed entry.

Each night they paid the required fee and signed

a “license agreement" agreeing to comply with

all rules and regulations of the club and also

agreeing to bring no drugs or drug paraphernalia

upon the premises.

)

In the living room Ralph Lunati was showing

films portraying sexual intercourse, fellatio,

cunnilingus a masturbation. The same three

films were oN on each night the officers

visited.

Games were played under the direction of

Ernest Lunati. The games consisted of guessing

the age at which the ladies lost their virginity

or first performed fellatio. They also guessed

the ladies’ measurements. In order to facilitate

this guessing, the participants were allowed to

touch and to examine the body of the one about

whom the guessing was taking place. Ernest

Lunati had Tina Murphy do a nude dance on a

table to facilitate the guessing of her measure-

ments. Another game consisted of strip spin the

bottle. When the bottle stopped on an individual

he or she was required to remove an article of

clothing. the game continued until the partipants

were nude.

There was one bedroom downstairs and two

a bedrooms upstairs. In these bedrooms mattresses

were spread on the floor and the participants

were invited to go to the bedrooms and engage in

sexual intercourse and various other sexual .

activities in paris and ip larger groups. Ernest

Lunati invited the lady detective to go upstairs

and "get it on" with him. She declined. People

were also seen walking around through the club-

mouse naked and the doors to the bedrooms were

never closed, so the officers and other partici-

pants were able to walk through and observe

varicus sexual activities in progress.

On the third night other officers were

called in and the club was raided. The manage-

ments and the patrons were arrested, the films

and other items of evidence were confiscated

pursuant to a search warrant and participants

were photographed in the pedrooms in the nude.

From that raid these charges emanated.

In the first issue Anthony Ernest Lunati

contends that the term “licentious sexual inter-

course" as used in TCA §39-2-63l(a), does not

conform to the date process standard of certainty “7

required in a criminal statute, impermissibly

intruded upon the rights of individual privacy,

° expression and association guaranteed by the

First and Fourteenth Amendments of the United

States Constitution and Article 1, Sections 8, 19

and 23 of the Tennessee Constitution.

Ernest Lunati was indicted under TCA §39-

2-632, which provides as rollows:

It shall be unlawful to engage in, or to

Knowingly aid or apet in, prostitution

Or assignation or to procure or solicit

or to reside in, enter, or remain in any

vehicle, trailer, conveyance, place,

structure, or building for the purpose

of prostitution or assignation, or to

keep or set up a house of ill fame,

brothel or bawdy house, or to receive or

direct any person for purposes of

prostitution or assignation into any

vehicle, trailer, conveyance, place,

» structure or building, or to permit any

person to remain for the purpose of

prostitution or assignation in any

vehicle, trailer, conveyance, place,

structure, or pbuilding, or to direct,

take, or transport, or to offer or agree

take or transport, or to aid or assist

in transporting or directing any person

to any vehicle, conveyance, trailer,

place, structure, or duilding, or to any

other person with knowledge or naving

reasonable cause to believe that the

purpose of such directing, taking or

transporting is prostitution or assigna-

tion, or to lease or rent or contract to

lease or rent any vehicle, trailer,

conveyance, place, structure, or

building, or part thereof, believing

$ “hat it is intended to be used for any

of the purposes herein prohibited, or to

knowingly aid, abet, or participate in

the doing of any of the acts herein

prohibited.

The definitions or "prostitution" and "“as-

Ssignation”™ as used in that section are found in

TCA 939-2-631. Only the definition of prostitu-

tion is challenged. TCA §39-2-63l(a) provides

that:

The term “prostitution” shall be con-

strued to include the giving or

receiving of the pody for sexual inter-

course tor nire (or for licentious sex-

ual intercourse without hire).

It is settled that tne fair-warning require-

ment emodied in the Due Process Clause prohibits

holding an individual "criminally responsible

for conduct which he could not reasonbly under-

stanad to be proscribed". Rose v. Locxe, 423

U.S. 48, 49% 96 S.Ct. 243, 46 L.Ed.2d i185 (1975),

quoting United States v. Harriss, 347 U.S. 612,

617, 74 S.Ct. 808, 812, 98 L.Ed 989 (1954). It

is a basic principle or due process that an

enactment is void for vagueness if its prohibi-

tions are not clearly defined. Grayned v. City

of Rocxford, 408 U.S. 104, 108, 92 S.Ct. 2294,

2298, 33 L.Ed.2d 222 (1972). If the statutory

language when measured py common understanding

and practices is so vague that "men of common

intelligence must necessarily guess at its meaning

and differ as to its application", then the

statute is unconstitutional. Connally v. General

Construction Company, 269 U.S. 385, 391, 46 S.Ct.

126, 127, 70 L.Ed. 322 (1926). However, the pro-

hibition against excessive vagueness does not

invalidate every statute which 4 reviewing court

believes could have been drafted with a greater

precision. Many, perhaps most, statutes have

some inherent vagueness for "(i)n most English

words and phrases tnere lurk uncertainties".

Rose v. Locke, supra, quoting Robinson v. United

States, 324 U.S. 282, 286, 65 S.Ct. 666, 668, 89

L.Ed. 944 (1945).

Even trained lawyers may find it necessary

to consult legal dictionaries, treatises and

judicial opinions before they may say with any

certainty what some statutues may compel and

forbid. All the Due Process Clause requires is

that tne law give sufficient warning that people

May conduct themselves so as to avoid that which

is forbiaden. Rose v. Locke, supra.

-

The word "prostitution" is not a technical

term and nas no common law meaning. It is de-

fined as the practice of a female offering her

body indiscriminately for the purpose of inter-

course with men. The term normally suggests

sexual relations for hire. 73 C.J.S. (Prostitu-

tion) $l, p. 224. Thus, the first portion of

the definition of what has been described as the

Oldest “profession”. Certainly it is an ancient

practice, dating to early Biblical times. See:

Genesis 38:13-2l.

However, the parenthetical clause is the

one under which Messrs. Lunati are charged, and

it is asserted that the term "“licentious sexual

intercourse without hire” is too vague to pass

constitutional muster. "Licentious” is defined

as "disregarding accepted rules and standards;

morally unrestrained, especially in sexual acti-

vity; lascivious”. Webster's New World Diction-

ary of the American Language, Second College

Edition, p. §15 (1980). "Licentious” is also

defined as “characterized by license; overpassing

due bounds; loose in behavior; profligate; disso-

lute; libidinous". The New Webster Encyclopedic

Dictionary of the English Language, p. 490 (1971).

The term is further defined as “lawless, hence,

immoral or lewd". The New York Times Everday

Dictionary, p. 396 (1982).

By reference to these dictionaries, commonly

available at any bookstore or library, one can

readily ascertain the meaning of the word "“licen-

tious". It is hardly necessary to resort to legal

research materials in order to determine when

sexual intercourse is licentious.

The appellant contends that the term is so

vague that it allows police officers a license to

arrest anyone for any sexual activity the officers

consider immoral, distasteful or out of place,

including arrests of married couples in the privacy

of their homes or unmarried couples fornicating in

private, which, as the appellant points out, is not

a crime in Tennessee. Wilkerson v. Benson, 542

SW2d 811, 812 (Tenn. 1976).

The possibility that a police officer might

misconstrue the statute is a problem which will

only be addressed when and if such an event e-<:~

Mappens. Courts cannot settle abstract questions,

however important, or however simple they may be,

upon the supposition they may hereafter arise.

They may never do so. State ex.rel. Palmer v.

Wagoner, 88 Tenn. 290, 12 SW 721 (1889).

The term "“licentious sexual intercourse”

must be interpreted in the context in which it is

found, within the statute defining ‘uecetitution™.

The term is not so vague than men of common

understanding would have any difficulty ascertain-

ing that these commercially operated swingers

parties are included within the term. The

statute is constitutional and this issue has not

merit.

In his second issue, Ernest Lunati contends

that the trial judge erred by refusing to grant a

severance as to the defendants and as to the

offenses. He contends that severances were

required because ne was not charged in the

obscenity indictments in which his brother was

charged.

Severance is a matter addressed to the sound

Giscretion of the trial judge. The exercise of

: ‘ 4 7 a8 OTe Ny ses’ : “ wana,

chy Sete ht ’ a seat | See ee ee ae 3 ote 7 Segal

that discretion by the denial of a motion for

* severance will not be reversed unless it appears

that the defendants were preiudiced by the trial

judge's frailure:to sever. State v. Coleman, 619

SW2d 112, 116 (Tenn. 1981).

Rule 8(a), T.R.Cr.P., provides for mandatory

joinder of offenses “if the offenses are based upon

the same conduct or arise from the same criminal

episode" if known to the prosecutor at the time of

the indictment and ir within the jurisdiction of a

Single court. Permissive joinder is provided by

Rule 8(b), T.R.Cr.P., if the offenses “constitute

parts of a common scheme or plan or if they are of

* the same or similar character".

Defendants may be joined in the same indictment

even if all of the defendants are not charged in

each count and conspiracy is not charged if the

various offenses were “part of a common scheme or

plan" or "so closely connected in respect to time,

place and occasion that it would be difficult to

separate proof of one charge from proof of the

others". Rule 86(¢)(3)(i1) and (44), : T.8.Cre-P.

A detendant is entitled to a severance of

offenses "unless the offenses are part of a common

scheme or plan and the evidence of one would be

admissible upon the trial of the others". Rule

14(b)(1), T.R.Cr.P. The court shall also grant a

severance of offenses if appropriate "to promote a

fair determination of the defendant's guilt or

innocense of each offense". Rule 14(b)(2)(i),

T.R.Cr.P.

A severance of defendants shall be granted

if, inter alia, "it is deemed appropriate to

promote a fair determination of the guilt or

innocence of one or more defendants". Rule

14(c)(2)(i), T.R.Cr.P.

All of the activities or the defendants,

including the showing of the pornographic films

were parts of a common scheme or plan to operate

the swingers club. The trial of this case was

lengthy and tedious. Frugality in the utilization

of judicial time and resources are permissible

considerations in determining whether to grant a

severance, so long as the danger of prejudice to

the defendant is not outweighed by these consider-

ations. Bruce v. State, 213 Tenn. 666, 378 SW2da

758, 760 (1964). To have granted a severance of

offenses or defendants in this case would have been

a terrible waste of scarce judicial resources. The

record does not contain the slightest hint of

prejudice to Ernest Lunati by the joinder of

offenses and defendants in this case. The trial

judge instructed the jury that they were to

consider the charges against each defendant

individually. It is presumed that the jury

followed his instructions. State v. Barton, 626

SW2d 296, 298 (Tenn.Cr.App. 1981). In fact, both

he and his brother were acquitted of one charge.

This issue has no merit.

In the next issue Ernest Lunati contends that

the state's escalation of the charges was a

deliberate and malicious attempt to deny the

appellants their due process and Sixth Amendment

rights and was an arbitrary abridgement of TCA §40-

1131. This section of our Code was repealed by

Section 1, Chapter 399 of the Public Acts of 1979.

Counsel actually is relying upon Rule 5(e),

mumeCe.P.

A prosecutor does not violate due process by

Maving a nolle prosequi entered on an indictment

and resubmitting the case to the grand jury ona

different charge. So long as the prosecutor has

probable cause to believe that the accused com-

mitted an offense, the decision whether to

prosecute, and what charge to bring before a grand

jury, generally rests entirely in the discretion

of the prosecutor. Bordenkircher v. Hayes, 434

U.S. 357, 98 S.Ct. 663, 668, 54 L.Ed.2d 6U4 (1978).

No prejudice nas been shown from the reindict-

ment of the appellant and this issue has no merit.

In the next issue Ernest Lunati contends that

tne admission of the state's rebuttal proof and

final summation to the jury were inherently

prejudicial, improper and inflammatory, thus

denying him a fair trial.

In their case in chiet the appellants

presented a documentary videotape showing thirty-

one places in Shelby County which provide adult

entertainment. They also introduced sexually

explicit viaeotapes which were filmed from the

screens of television sets in rooms in the Alamo

Plaza Motel and the Admiral Benbow Inn. The

appellants also presented various sexually explicit

videotapes, Magazines and books which’ their

witnesses had purchased in Shelby County. Their

avowed purpose was to show the types of sexual

behavior that are tolerated in Shelby County.

In response to this proof the state presented

the testimony of two Assistant District Attorneys

General who testified about other obscenity cases

they had tried in the Shelby County Criminal Court

and the fact that the juries found the films in

some of those cases to be obscene. Neither of

these attorneys had seen the films at issue in this

case, and it strains one's imagination to determine

how their testimony was relevant to anything. Not

having seen the films at issue in this case, there

was no way they could compare the films from their

cases with the films shown in this case.

The other rebuttal proof consisted of the

recall of one of the detectives who infiltrated the

swingers club. He testified that he obtained a

January 1980 edition of Partners magazine. Inside

he found an advertisement for a videotape of a 7

Partners Television Show. He ordered a copy of

the videotape and it was played before the jury.

The tape dealt with the subject of swingers clubs

in the Memphis area and portrayed the appellant,

Ralph Lunati, and his acquitted co-defendant,

Tamara Caraway, engaging in sexual intercourse.

"Rebutting evidence" is evidence which tends

to explain or controvert evidence produced by the

adverse party. Cozzolino v. State, 584 SW2d 765,

768 (Tenn. 1979). Like any other evidence,

rebuttal evidence must be relevant and material to

the facts at issue in the case. Merriman v. Smith, °

599 SW2d 548, 558 (Tenn.App. 1979). Even relevant

evidence should not be admitted if its probative

value is outweighed by the prejudicial effect upon

the jury. State v. Banks, 564 SW2d 947, 951

(Tenn. 1978). The determination of the admissi-

bility of rebuttal evidence lies in the discretion

of the trial court. Hardin v. State, 210 Tenn.

116, 355 SW2d 105, 114 (1962).

The rebuttal evidence was aimed at Ralph

Lunati and Tamara Caraway. Ernest Lunati has not

*« shown how he was prejudiced in any way by the

admission of this evidence. Any error in its

admission was clearly harmless as to him. Rule

Seamee tTeR.CE.P., Rule 36(b), T.R<A.P. The

rebuttal proof aspect of this issue has no merit.

Ernest Lunati also contends that the prosecutor

erred by arguing to the jury that they should be

the protectors of society and the guardians of

Christian morals. Specific citations to alleged

. errors are not cited. Rather, in a footnote, the

appellant points to forty-two pages of argument

which he contends is erroneous, including five

pages of argument by his own counsel.

Defense counsel first objected after the

prosecutor made the following remarks:

You have to decide what the community

will tolerate with regard to obscenity.

When you talk about community standard,

you won't be deciding what this community

will tolerate. But because everybody is

doing it, does that make it okay, does

that make it legal? What if we had five

hundred rapes next year? Would that mean

that Memphis tolerates, condones and

accepts and won't prosecute rapes?

In response to his objection to the use of

the word "rape", the prosecutor changed the term

to “car theft" and the argument continued until .

the prosecutor later said:

It could be north, south, east or west,

and you're the ones that are going to

have to decide who is going to tolerate

it. You speak for this community.

Shelby County. Ycu speak for what

Shelby County will tolerate. If you

tolerate it, I submit to you, you will

have it, north, east, south, and west.

I ask that you return a verdict of

guilty in each of these indictments.

When you get to--

Counsel objected to the use of the words “north,

east, south and west" and moved unsuccessfully for

a mistrial at that time. .

In his final argument the prosecutor stated:

I submit that when you place your-

selve(sic) in the average shoes, that

everybody walking around here in this

county will say we don't want this

around here, and you'll bring back a

guilty verdict as to each defendant on

each indictment and set a penalty that

you feel is appropriate and a penalty

that is in accordance with that that

truth dictates and justice demands. to

do less is to fail in your duty to the

oath you took in the big jury room, the

oath you took yourselves over there, but

also the oath you took to your community

because you are the community here today.

It is up to you to decide what all those

other million people out there want.

Each of you, in essence, has more power

than anybody we sent up to Nashville.

Each of you represent around about a

hundred thousand people here today. You

have to make a decision that they want.

If you were out there, what would you

want them to do?

Thank you.

Defense counsel object to this argument and

again moved unsuccessfully for a mistrial.

These comments were improper arguments. How-

ever, not every improper comment warrants a

reversal, only those which could have affected the

verdict. Harrington v. State, 215 Tenn. 338, 385

SW2d 758, 759 (1965). In determining whether a

comment was prejudicial, appellant courts must

examine the remarks in light of five factors.

Judge v. State, 539 SW2d 340, 344 (Tenn.Cr.App.

1976). These factors are:

The conduct complained of viewed in

context and in light of the facts

and circumstances of the case.

The curative measures undertaken by

the court and the _ prosecution.

The intent of the prosecutor in

making the improper statement.

4. The cumulative effect of the improper

conduct and any other errors in the

record.

5. The relative strength or weakness of

the case.

Applying these factors, it is clear that

the quoted remarks were totally harmless. This

was a very strong case, with the appellants caught

in the act by undercover law enforcement officers.

There were no other errors in the record except

for one evidentiary problem hereinafter discussed.

Nor curative measures were undertaken by the

trial judge. The prosecutor's intent was obviously

to get the jury to assess a heavy penalty. This

issue is without merit.

In the next issue Ernest Lunati contends

that the constitutional right of privacy extends

to private sexual behavior between consenting

adults and the state, absent a compelling state

interest, does not have a right to intrude upon

that right of privacy. The appellant contends

that the swingers parties were conducted in a

private home with only consenting adults partici-

pating and were thus beyond the reach of law

"enforcement officials.

The appellant's contention that the acts were

committed in private is patently without merit. The

Club was widely advertized on large billboards and

signs on buildings located on busy thoroughfares

throughout the City of Memphis. Five photographs of

these billboards contained advertisements as

follows:

SWINGERS PARTY

CALL 324-5975

For Sexy Recorded Information

In addition, a portable electric sign was in

.

operation in front of 3704 Summer Avenue with the

following lettering thereon;

SWINGERS PARTY

COUPLES ONLY

SAT 8PM CALL

SEXIE(sic) REC 458 6599

In City of Chattanooga v. McCoy, 645 SW2d 400,

403 (Tenn. 1983), our Supreme Court upheld the

*constitutionality of a Chattanooga city ordinance

,Prohibiting sexual conduct “in "public place(s)."

Among the definitions of "public place" contained

in the ordinance were "private, fraternal, soc-

ial, golf or country clubs”. 645 SW2d at 401.

For an admission fee couples willing to abide

by the terms of the license agreement could be

admitted to the swingers club to watch or engage

in sexual activities. This was a "public" fac-

ility where members of the public were admitted

and clearly was not a private party in a private

home. There was no violation of the appellant's

right of privacy and this issue has no merit.

In the next issue Ernest Lunati and the

Freewheelin Social Club adopted all of the errors

advocated in the motion for a new trial and all

arguments, errors and authorities contained in the

brief of Ralph Lunati.

To the extent that matters contained in the

motion for a new trial are not briefed, they are

waived. The brief must contain an argument

setting forth the contentions of the appellant,

the reasons therefor, citations to the authorities

and appropriate references to the record. Rule

27(a)(7),, TRAP. Having failed to include an

argument and citations on any of these issues, they

are waived.

The appellants are entitled to adopt by

reference any part of a brief of another party.

Rule 27(4j), T.R.A.P. Hence, the issues raised by

Ralph Lunati have also been considered where ap-

propriate as to Ernest Lunati and the Freewheelin

Social Club.

In his first issue Ralph Lunati questions

whether TCA §39-2-631, et seq. are constitutional.

This issue raises the same vagueness and right to

privacy issues raised by Ernest Lunati. As here-

tofore set forth, these issues have no merit.

He further contends that TCA §39-2-633 contains

an impermissible gender-based classification, fail-

ing to meet the standards set forth in Craig v.

Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397

(1976). However, this issue was not included in

the pretrial motions or otherwise litigated in the

trial court. Therefore, this issue cannot be con-

sidered by this Court. Lawrence v. Stanford, Tenn-

A ’ soit

essee Supreme Court, opinion filed at Knoxville,

August 15, 1983, submitted for publication.

Next, Ralph Lunati questions whether the

trial judge erred in denying his motion to

Suppress the three films seized at the time of

his arrest.

At the time of the raid one of three

pornographic motion pictures was being exhibited

in the living room. The pornographic nature of

the film was obvious to the most casual observer.

It was in "plain view" of the officers who were

lawfully on the premises. Hence, it was properly

seized. Armour v. Totty, 486 SW2d 537, 539

(Tenn. 1972).

However, the~closed, unmarked film contain-

ers were not subject to seizure under the same

rationale. As to those films, this case is

analogous to Walter v. United States, 447 U.S.

649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980).

In that case several cartons of pornographic

films were mistakenly delivered to L'Eggs Pro-

ducts, Inc., in Atlanta, Georgia. Not having

» Ordered any pornographic films, the official of that

"company, upon learning the contents of the cartons,

Pelivered the films to the Federal Bureau of

Investigation. After receiving the films, F.B.I.

agents, without a search warrant, viewed the films.

Thereafter, the defendants were indicted for the

interstate transportation of some of the obscene

films.

‘The Supreme Court held that the unauthorized

exhibition of the films unreasonably invaded the

owner's constitutionally protected right to privacy.

,100 S.Ct. at 2400. In that case the labels on the

individual boxes containing the films had suggestive

Pdrawings and explicit descriptions of the contents,

but the larger unmarked cartons were opened by

private individuals, thus exposing the suggestive

labels. 100 S.Ct. at 2402. While the labels

provided probable cause that the films were obscene,

there were no exigent circumstances excusing the

requirement of a search warrant before the films

were viewed. 100 S.Ct. at 2400.

° In this case the search warrant which was

obtained by the officers was for a $20.00 bill which

had been used by the detectives to gain admission

and for the admittance forms that were issued.

No reference was made to any films. The containers

in which the two unexhibited films were found

were unmarked plastic film boxes which in no way

revealed the nature of the motion picture

contained therein. Hence, it is clear that the

admission of these two films into evidence was

error. Therefore, the convictions for the exhi-

bition and possession of these films (those

charged in Indictments Nos. 83744 and 83745) are

reversed and must be dismissed, since there can

be no prosecution without the obscene materials.

Greene v. Massey, 437 U.S. 19, 98 S.Ct. 215l,

2154, 57 L.Ed.2d 15 (1978).

In the next issue the appellant contends

that he was denied a fair trial because of the

introduction of the rebuttal proof. First, he

points at the videotape which was. shown. He

contends that the trial judge erred in allowing

this introduction because two defendants were

participants and they appeared in the tape. He

_ contends that the introduction of the tape was

"merely to incite the jury and prejudice the defendants

ein the eyes of the jury. He further contends that

the state failed to lay a proper foundation for the

introduction of the tape. He also contends that it

was irrelevant and immaterial. He asserts that the

introduction of this evidence was in violation of

the best evidence ruled. He further contends that

the tape was so manifestly prejudical that any

provative value was outweighed by the prejudicial

effect and that its introduction amounted to unfair

Surprise and violated the trial court's order

“regarding discovery.

It is difficult to understand how this videotape

was relevant to any of the issues raised in this

trial. It was not relevant to a determination of

whether the films at issue were pornographic. It

was not relevant to the issue of the community

Standards. The only effect that such evidence could

possibly have was to inflame the jury, since it

revealed in graphic living color the appellant's

involvements in the field of obscene movies and sex

.

_ ¢lub. The showing of this film in rebuttal was

“clearly error. However, equally clear is the fact

¢

> 4 ‘

+ » we f : ;, . aa.

> thee et te P “2 ~~ wim ‘3 “% ” 4, +} aeme Ay

that it was harmless error. One of the partici-

pants portrayed in the film, Ms. Caraway, was

acquitted by the jury, and Ralph Lunati was

acquitted of one of the charges against him.

A judgment of conviction shall not be

reversed on appeal except for errors which

affirmatively appeared to have affected the

result of the trial on the merits. Rule 52(a),

ta), TR.Ce.P. This error did not affect the

result of the trial on the merits.

A final judgment from which relief is

available and otherwise appropriate shall not be .

set aside unless, considering the whole record,

error involving a substantial right more probably

than not affected the judgment or would result in

prejudice to the judicial process. Rule 36(b),

T.R.A.P. Considering the whole record, this

error neither affected the judgment nor resulted

in prejudice to the judicial process.

Ralph Lunati also challenges the admission

of the rebuttal testimony of the two Assistant

District Attorneys General, contending that their

testimony was irrelevant and incompetent heresay,

which in no way showed what comprised the community

standard.

As heretofore stated, the admission of this

testimony was clearly error for it did not touch the

issues in this case in any way. However, it was also

harmless error. Rule 52(a), T.R.Cr.P., Rule 36(b),

T.R.A.P. Although the rebuttal proof was an attempt

at prosecutorial overkill, it did not affect the

verdict, and this issue has no merit.

‘ Ralph Lunati also contends that he was denied a

fair trial because of the cumulative effect of the

gross and numerous trial errors. He basis this

allegation upon the fact that his motion for a new

trial stated forty-six grounds and that Ernest

Lunati's motion and Freewheelin Social Club's motion

contained over fifty asserted errors. However, all

of these alleged errors are simply the assertion of

the very vigorous counsel who represented the

appellants at the trial and on appeal. Counsel's

assertions of error in the motion for a new trial are

mot indications that the errors actually occurred.

This issue has no merit.

In the final issue the appellant contends

that TCA §39-6-1101, et. seq. are unconstitutional

statutes. This issue is not briefed, but rather

a fifteen page brief in another case setting

forth this issue is appended to the appellant's

brief as an exhibit and “incorporated by refer-

ence". Even without the inclusion of this

appendix, the seventy-one page argument far

exceeds the fifty pages allowed for argument in

the absence of an order from the appellate court

or a judge thereof allowing a more extensive

argument. Rule 27(i), T.R.A.P. In this case

counsel for Ralph Lunati twice sought and were

refused authority to argue in excess of fifty

pages. However, they chose to disregard the

orders of a judge of this Court.

Furthermore, we are unaware of any appellate

procedure whereby one can incorporate by reference

a brief from an unrelated case involving parties

who are not parties to the appeal. Therefore,

the brief appended to the brief in this case has

not been considered by this Court. The appellant

having failed to comply with Rule 27(a)(7),

’ T.R.A.P. and properly present an argument on this

issue, the issue was waived.

Finding all of the issues, with the exception

of issue concerning seizure of the two films, to

be without merit, the judgments of conviction are

affirmed as modified herein. However, because

two films were illegally seized, the judgment

against Ralph P. Lunati and the Freewheelin Social

Club are modified. The convictions of Ralph P.

Lunati and the Freewheelin Social Club in Cases

numbered 83744 and 83745 are reversed and

dismissed. The net effect is to reduce the

sentence of Ralph P. Lunati to not less than nor

more than one and one-half years in the state

penitentiary and one sentence of sixty days in

the Shelby County Correctional Center to be served

concurrently and to pay a fine of $50.00. The

fine to be paid by the Freewheelin Social Club is

reduced from $75,000.00 to $25,000.00. The

convictions of Anthony Ernest Lunati are affirmed

without modification.

As modified, the judgments are affirmed.

/s/

JERRY SCOTT, JUDGE

CONCUR:

/s/

ROBERT K. DWYER, JUDGE

/s/

CHARLES H. O'BRIEN, JUDGE

APPENDIX B

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

STATE OF TENNESSEE, *

=

Plaintiff-Appellee, *

*

Vs. * Shelby Criminal

* C.C.4.. Bie Se

ANTHONY ERNEST LUNATI, ET AL,*

*

*

Defendants-Appellants.

ORDER

Upon consideration of the application for

permission to appeal and the entire record in

this cause, the Court is of the opinion that the

application should be and the same hereby is

denied at the cost of the Appellants.

PER CURIAM

s/s Filed 12/28/83

APPENDIX C

FIRST AMENDMENT TO THE .

CONSTITUTION OF THE UNITED STATES

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the

people peaceably to assemble, and to petition the

government for a redress of grievances.

APPENDIX D

e FIFTH AMENDMENT TO THE

CONSTITUTION OF THE UNITED STATES

No person shall be held to answer for a

capital, or otherwise infamous crime, unless on a

presentment or indictment by a grand jury, except

in cases arising in the land or naval forces, or

in the militia, when in actual service in time of

war or public danger; nor shall any person be

subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against

himself; nor be deprived of life, liberty, or

ad property, without due process of law; nor shall

private property be taken for public use, without

just compensation.

APPENDIX E

FOURTEENTH AMENDMENT TO THE

CONSTITUTION OF THE UNITED STATES

§1. All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the state wherein they reside. No state shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any state deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction

the equal protection of the laws.

ee

TENNESSEE CODE ANNOTATED,

SECTION 39-2-631

As used in §§39-2-631 — 39-2-638, the follow-

ing words shall have the following meanings:

(a) The term "prostitution" shall be

construed to include the giving or receiving of

the body for sexual intercourse for hire (or for

licentious sexual intercourse without hire).

(b) The term "assignation" shall be construed

| to include the making of any appointment or engage-

ment for prostitution or for the purpose of fella-

tio or cunnilingus, or any act in furtherance of

such appointment or engagement. [Acts 1943, ch. 157,

§ 2; C.Supp. 1950, § 11190.1 (Williams, § 11190.2);

Acts 1977, ch. 397, § 1; T.C.A. (orig. ed.), § 39-

3501.)

TENNESSEE CODE ANNOTATED,

SECTION 39-2-633

39-2-633. Procuring Female Inmate for House

of Prostitution -- Receiving Money from Prostitute

It shall be unlawful to procure a female inmate

for a house of prostitution, or to cause, induce,

persuade, or encourage by promise, threat,

violence or by any scheme or devise, a female to

become a prostitute or to remain in or become an

inmate of a house of prostitution or to receive or

give aay money or thing of value for procuring,

attempting to procure any female to become a

prostitute or an inmate of a house of prostitution,

Or to knowingly accept, receive, levy or appro-

priate any money or other thing of value without

consideration from a prostitute or from the

proceeds of any woman engaged in prostitution, or

to knowingly aid, abet, or participate in the

doing of any of the acts herein prohibited. [Acts

1943, ch. 157, $4; C. Supp. 1950, §11190.3 (Wil-

liams, §11190.4); T.C.A. (orig. ed.), §$39-3503.]

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