State v. Lunati

• Decision Date: 22 September 1983
• Parties: STATE of Tennessee, Appellee, v. Anthony Ernest LUNATI, Ralph P. Lunati and Freewheelin Social Club, Appellants.
• Court: Tennessee Court of Criminal Appeals

Page 739

665 S.W.2d 739

STATE of Tennessee, Appellee, v. Anthony Ernest LUNATI, Ralph P. Lunati and Freewheelin

Social Club, Appellants.

Court of Criminal Appeals of Tennessee,

at Jackson.

Sept. 22, 1983.

Permission to Appeal Denied by Supreme Court Dec. 27, 1983.

Certiorari Denied April 16, 1984.

See 104 S.Ct. 1913.

Phillip E. Kuhn and Barry W. Kuhn, Kuhn, Kuhn & Kuhn, Memphis, for all appellants at trial and Anthony Ernest Lunati and Freewheelin Social Club on appeal.

Tommy H. Jagendorf, N. Alan Lubin, Memphis, for appellant, Ralph P. Lunati, on appeal only.

William M. Leech, Jr., Atty. Gen., Jennifer Helton Small, Asst. Atty. Gen., Nashville, Hugh W. Stanton, Jr., Dist. Atty. Gen., Kathleen O. Spruill, Edgar A. Peterson, IV, Asst. Dist. Attys. Gen., Memphis, for appellee.

OPINION

SCOTT, Judge.

The appellants were indicted along with Tamara L. Caraway in seven separate indictments, charging various offenses relating to prostitution 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 § 39-6-1001(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 one-half years in the state penitentiary. Ms. Caraway was acquitted. In separate indictments the Lunatis were charged with engaging in prostitution 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 three sentences of sixty days in the Shelby County Correctional Center. The 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 concurrently. In this appeal Ernest Lunati and Freewheelin Social Club have raised six issues. Ralph Lunati has raised four issues with numerous subissues. 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 and masturbation. The same three films were shown 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 measurements. 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 participants were nude.

There was one bedroom downstairs and two 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 pairs and in 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 clubhouse naked and the doors to the bedrooms were never closed, so the officers and other participants were able to walk through and observe various sexual activities in progress.

On the third night other officers were called in and the club was raided. The management 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 bedrooms in the nude. From that raid these charges emanated.

In the first issue Anthony Ernest Lunati contends that the term "licentious sexual intercourse" as used in TCA § 39-2-631(a), does not conform to the due process standard of certainty 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 follows:

It shall be unlawful to engage in, or to knowingly aid or abet 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 building, or to direct, take, or transport, or to offer or agree to take or transport, or to aid or assist in transporting or directing any person to any vehicle, conveyance, trailer, place, structure, or building, or to any other person with knowledge or having reasonable cause to believe that the purpose of such directing, taking or transporting is prostitution or assignation, or to lease or rent or contract to lease or rent any vehicle, trailer, conveyance, place, structure, or building, or part thereof, believing that 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 of "prostitution" and "assignation" as used in that section are found in TCA § 39-2-631. Only the definition of prostitution is challenged. TCA § 39-2-631(a) provides that:

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).

It is settled that the fair-warning requirement embodied in the Due Process Clause prohibits holding an individual "criminally responsible for conduct which he could not reasonably understand to be proscribed." Rose v. Locke, 423 U.S. 48, 49, 96 S.Ct. 243, 244, 46 L.Ed.2d 185 (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 of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972). If the statutory language when measured by 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 prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many, perhaps most, statutes have some inherent vagueness for "(i)n most English words and phrases there 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 statutes may compel or forbid. All the Due Process Clause requires is that the law give sufficient warning that people may conduct themselves so as to avoid that which is forbidden. Rose v. Locke, supra.

The word "prostitution" is not a technical term and has no common law meaning. It is defined as the practice of a female offering her body indiscriminately for the purpose of intercourse with men. The term normally suggests sexual relations for hire. 73 C.J.S. (Prostitution) § 1, p. 224. Thus, the first portion of the definition in TCA § 39-2-631(a) comports with the commonly understood definition of what has been described as the oldest "profession." Certainly it is an ancient practice, dating to early Biblical times. See: Genesis 38:13-21.

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 activity; lascivious." Webster's New World Dictionary of the American Language, Second College Edition, p. 815 (1980). "Licentious" is also defined as "characterized by license; overpassing due bounds; loose in behavior; profligate; dissolute; 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 Everyday Dictionary, p. 396 (1982).

By reference to these dictionaries,...