Cherry v. State

Moylan, J., delivered the opinion of the Court. The appellant, James Larry Cherry, was convicted in the Circuit Court for Montgomery County by a jury, presided over by Judge Plummer M. Shearin, of soliciting for “purposes of prostitution, lewdness and assignation” in violation of Article 27, Section 15 (e). The appellant mounts two constitutional attacks upon his conviction: (1) That Section 15 (e), either on its face or as applied to the particular facts of this case, is an unconstitutional abridgment of the freedom of speech guaranteed by the First Amendment; and (2) That Section 15 (e) is unconstitutional under the Fifth and Fourteenth Amendments because of vagueness and overbreadth. The Facts in this Case On Sunday, May 2, 1971, there appeared, under the category “Help Wanted,” the following classified ad in The Washington Post: Receptionist Single, attractive age 20-25, to schedule and coordinate office activities.

Call 585-7508. 8750 Georgia Ave. Suite 140E. S.S. On the following Monday, Miss Virginia Rice, a 24-year-old cashier for People’s Hardware, called the listed number and made an appointment for the following day. On Tuesday, May 4, she appeared at 1 p.m. at 8750 Georgia Avenue for an interview.

After filling out an application blank, Miss Rice was ushered into the office of the appellant where she was interviewed for approximately an hour and a half. The nature of the appellant’s business operation was never specifically established. After routine preliminary ²⁵⁴ questioning, the appellant volunteered that Miss Rice “didn’t have a very glamorous life” and “had been pushed around” and “needed a little bit more money to make [her] life more glamorous and interesting.” The appellant indicated that Miss Rice’s work would require “entertaining clients.” The interview terminated shortly thereafter. Miss Rice was told that she might be contacted at a later time.

At 7 p.m. that evening, the appellant called Miss Rice and requested her to return to the office for a further interview. She agreed to do so, arriving back at 8750 Georgia Avenue at approximately 7:30 p.m. The appellant repeated that Miss Rice would have to “entertain his clients” and added that everything must be “very confidential.” He then got up, closed the blinds to the picture window behind him, and asked Miss Rice to undress. She declined.

He then asked specifically whether Miss Rice “would consider going out with clients and entertaining them.” She asked for a further explanation. He explained that he meant “going to bed with them and dinner and dancing, you know, going to motels and things like that.” Somewhat flabbergasted, Miss Rice could only come up with the reply that she preferred “going out with men my own age.” The appellant then asked, “Would you consider going down on me?” Miss Rice replied, “No.” The appellant then inquired if Miss Rice understood the terminology and was assured that she did. The appellant added, “Some of our other clients like other sex besides just going to bed with each other.” The appellant proceeded to explain to Miss Rice “what these clients like to have done to them besides regular intercourse.” She was quoted a salary of $110 per week plus bonuses when she would “entertain clients.” The appellant added that he would give her help in picking out clothes to fit her figure, that he would send her to a salon to have weight taken off, and that she would be taught how to walk and how to make herself glamorous. Miss Rice left the office and went home.

The following day, she reported the entire incident to the Montgomery County Police. In response to the lead furnished by Miss Rice, Detective Ingrid Gibson, a six-year veteran of the Juvenile Section of ²⁵⁵ the Montgomery County Police Department, undertook the undercover assignment of posing as a job applicant before the appellant. Her cover story required her to take the name Myrna Case and to represent herself as a divorcee who had worked as a hostess-waitress in a bar for approximately two years. She called the appellant’s office for an appointment and was granted an interview on May 6.

A receptionist indicated that there would be a typing test. Mrs. Gibson replied that she did not type well and was only interested in the position of receptionist. She was told not to worry about the typing test. Mrs. Gibson was interviewed by a man by the name of Mr. Mack who explained that he felt that she needed a counselor, that he was going out of town, that he really did not have the time to interview her properly and that he had an associate by the name of Mr. James whom she should talk to.

She left the office with the understanding that she would be contacted on the following Monday. At her listed address at the Jo Ann Motel, she received a call from the appellant at approximately 11:15 p.m. that very evening. He indicated that he wished her to come into the office on Saturday so that he could interview her “without the pressures of other people being there.” She. met the appellant at the office at approximately 3 p.m. that Saturday. She was told to sever any existing relationships with other men.

She was told that the appellant’s clients were “extremely important people” and that “secrecy was of the utmost importance.” Her job was explained to her as being essentially that of “a companion to the client, that many jobs would require traveling possibly with the clients, staying with them for a number of weeks, for a number of months, or possibly just for one night.” The appellant told her that he could tell “by the look in [her] eyes that [she] had no objections to going to bed with people, that [she] enjoyed sex, that [she] was a hot-blooded passionate person.” The appellant volunteered that Mrs. Gibson “probably had experienced a variety of sex” and that she “would not be adverse to doing anything that would be required of [her], that the client would require different types of sex sometimes, because of the fact that they had ²⁵⁶ important jobs, they would have a hard day, and the way it was put, that they would have a hard time getting it up, and, therefore, not to smash a man’s ego by making overtures [herself].” She was told that “most of the girls who worked for [the appellant] were masters at understanding people, that it was of utmost importance to preserve the man’s ego, and, more or less, anticipate their wants and comply accordingly.” Mrs. Gibson was told by thé appellant that she would be paid in terms of bonuses and that she would be well rewarded for her services. She was told explicitly that those services consisted of “going to bed with clients.” All negotiations with the clients were to be handled by the appellant or his associates. Mrs. Gibson would be notified when a client was coming to see her and the client would know the purpose of the visit. The interview concluded at approximately 6 p.m.

Mrs. Gibson was told that she would be contacted again, at her motel, probably on the following Monday. The appellant indicated that he wanted to see her at her motel room and “that there was a test, which he didn’t really explain at that time.” On Monday, May 10, the appellant came to the motel room at approximately 6 p.m. Mrs. Gibson was asked whether she “had ever worked conventions or gone to bed with more than one person at one time.” The appellant assured Mrs. Gibson that his clients were not of that caliber. The appellant made frequent references to fellatio and repeatedly asserted that he was sure that Mrs. Gibson “had no aversions about any different type of sexual activity with people.” In referring again to “the test,” the appellant made it clear that the test consisted of going to bed with him or with one of his associates and that the purpose of this was “to enable us to grow together.” The appellant explained that they were “a very close organization, the girls were loyal” and that they helped set their girls up in business “after they finished working for them.” He cited as an example one Tinker Bell who had been one of his “girls” who had been subsequently set up in a nightclub in the District of Columbia.

The appellant then left, indicating that he would return to the\^ ²⁵⁷ motel room for one further visit for “the ultimate test as to whether or not [Mrs. Gibson] would have the job.” Before the “ultimate test” occurred, the Montgomery County Police, acting upon Mrs. Gibson’s information, arrested the appellant. The evidence amply demonstrates that the appellant violated Article 27, Section 15 (e) which provides, in pertinent part: “It shall be unlawful: (e) To procure or to solicit . . . for the purpose of prostitution, lewdness or assignation; ” The appellant, by way of defense upon this appeal, relies exclusively upon the claimed unconstitutionality of Section 15 (e), in two regards. Solicitation and Free Speech The thrust of the appellant’s First Amendment argument is that all he did was to utter words and to communicate thoughts — conduct which no criminal law may constitutionally abridge. He reads the freedom of speech clause too broadly.

Various forms of speech have long been held to be without the protective umbrella of the First Amendment. Roth v. United States, 354 U. S. 476 , 77 S. Ct. 1304 , 1 L.Ed.2d 1498 (obscenity); New York Times Co. v. Sullivan, 376 U. S. 254 , 84 S. Ct. 710 , 11 L.Ed.2d 686 (libel); Chaplinsky v. New Hampshire, 315 U. S. 568 , 62 S. Ct. 766 , 86 L. Ed. 1031 (fighting words); Dennis v. United States, 341 U. S. 494 , 71 S. Ct. 857 , 95 L. Ed. 1137 (advocacy of governmental overthrow). We look now specifically to speech which constitutes solicitation to a criminal act. The inchoate crimes generally are of recent vintage in the history of the common law. 1 The latest and the least of these is solicitation.

Its first formulation, as something distinct ²⁵⁸ from a mere aspect in the law of attempts, was in Rex v. Higgins in 1801, 2 East 5, 102 Eng. Rep. 269. As persuasively declarative of pre-existing common law, Rex v. Higgins was followed by landmark decisions in State v. Avery, 7 Conn. 266 , 18 Am. Dec. 105 (1828), and Commonwealth v. Flagg, 135 Mass. 545 (1883).

Solicitation is now universally recognized in the United States as a part of Anglo-American common law. 2 In Clark and Marshall, Law of Crimes (7th ed., 1967), its characteristics are well set out, at 219-223: “Solicitation is a distinct common-law misdemeanor in which the act forbidden consists of the accused person’s parol or written efforts to activate another to commit a criminal offense. It is immaterial whether the solicitation is of any effect and whether the crime solicited is in fact committed. . . The gist of this offense is incitement. In brief, the gravamen of this common-law misdemeanor lay in counselling, enticing, or inducing another to commit a crime . . .

Inciting or soliciting another to commit a crime is . the act of the least magnitude which is punishable by the common law. In such offenses the actor does nothing himself but he urges others to violate the law. The necessity for punishing such persons is obvious, and such conduct is generally punished as a substantive crime, notwithstanding the solicitation does not move the party solicited to commit the offense.” See also Perkins, Criminal Law (1969), 582-588; 21 Am.Jur.2d, Criminal Law, Sect. 114, “Solicitation as substantive offense”; 22 C.J.S., Criminal Law, Sect. 78, “Solicitation.” ²⁵⁹ There is a genuine split of authority, however, as to the grade of the solicited criminal offense which will give rise to an indictable solicitation. England apparently and several American states consider the misdemeanor of solicitation to apply to any indictable misdemeanor. 3 A number of states limit the object of a criminal solicitation to felonies and serious misdemeanors which tend to a breach of the peace. 4 Some states limit the object of the solicitation to a felony. 5 When Maryland first considered the crime of solicitation in 1887, it placed itself in this latter category, limiting the object of a criminal solicitation to a felony.

Lamb v. State, 67 Md. 524 (over the strong dissent of Chief Judge Alvey joined by Judge Irving). Some states which have abolished common law crimes have created statutory solicitations with certain enumerated crimes as cognizable objects of the solicitation. 6 Some states which have limited the object of common law solicitation to felonies have by statute extended the object of solicitation to specified misdemeanors. Maryland, by Chapter 737 of the Acts of 1920, made it a misdemeanor “To procure or to solicit or to offer to procure or solicit for the purpose of prostitution, lewdness or assignation,” which provision is now codified as the Art. 27, Sect. 15 (e) under present discussion. It is clear that when a legislature adds to the list of crimes which may be the objects of a criminal solicitation, it does not alter the general character of the act of solicitation itself.

In Riley v. United States, 298 A. 2d 228 , the Court of Appeals for the District of Columbia was dealing with Section 22-2701 of the D.C. Code 1967, which provided: “It shall not be lawful for any person to invite, ²⁶⁰ entice, persuade, or to address for the purpose of inviting, enticing, or persuading, any