# Petition — Lunati v. Tennessee > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1472%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 466 U.S. 938 ## Text 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- 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.] ? ryt Cy Ne ae : wie a i P ioe te i. @ aie by Et ee: Oe eee ee? ee a ey ee ee ST Yeo ee ye --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1472%3A1. Public record. Not legal advice.