A man’s blurted apology to a police officer arresting him has overturned his conviction for assaulting that officer, the Hawai‘i Supreme Court decided.
Henry Tolentino told a Honolulu Police officer “I’m sorry, I was just trying to get a Zip Pac” one night in September 2019.
The officer had pulled Tolentino over for speeding, but after Tolentino left his vehicle, the traffic stop escalated into a brief pursuit: Tolentino fled, the officer followed, and Tolentino reportedly kicked and punched the officer in the struggle. In turn, the officer reportedly punched Tolentino in the face repeatedly to subdue him until a second officer reached the pair and ended the scuffle.
As the officers handcuffed Tolentino, he reflexively said his apology. But, as a prosecutor later told a jury, “[he] knew he did something wrong by saying ‘I’m sorry.’”
Tolentino’s “unsolicited excited utterance” was used to suggest admission of guilt and contributed to him being found guilty of second-degree assault of a law enforcement officer, a misdemeanor offense for which he was sentenced to 30 days in jail and fined $155.
Tolentino appealed the ruling, arguing that a reflexively spoken phrase is not admissible in court without proper hearings on whether it was voluntarily made, hearings that did not happen in Tolentino’s case.
The state, meanwhile, argued that “excited utterances” may be involuntary, but not compulsory. That is, because Tolentino was not forced to say “I’m sorry,” it was still admissible, even if he didn’t mean to say it.
Tolentino also protested that prosecutors had stated during his trial that he was drunk during the 2019 incident, using only circumstantial evidence like the smell of alcohol and the redness of his eyes.
But it was the question of the reflexively spoken phrase that reached the Supreme Court. And on Tuesday, the court ruled that the guilty verdict against Tolentino was reached in error.
Writing for the opinion of the court, Associate Justice Todd Eddins concluded that, because there was no evidentiary hearing to determine whether Tolentino’s apology was voluntarily made, his conviction must be vacated and the case remanded for a retrial.
“An inculpatory statement must flow from the defendant’s free and voluntary choice,” Eddins wrote. “Custody or no custody. Interrogation or no interrogation.”
Associate Justice Lisa Ginoza wrote her own opinion partially dissenting with Eddins’ majority opinion. While Ginoza agreed that the lower courts had erred in allowing Tolentino’s apology to be admissible as evidence without an evidentiary hearing, that does not mean the case should be retried right away, she argued.
Only after a voluntariness hearing is conducted that determines Tolentino’s apology was involuntary should the case be retried, which Ginoza said is the constitutionally recognized procedure.
Ginoza added that the majority ruling now requires trial courts to hold voluntariness hearings for any known statement by a defendant that might admit guilt, which she wrote will be “a tremendous burden on our already overburdened trial courts.”
Nonetheless, with the Supreme Court verdict, Tolentino will get a new trial, although a court date has not yet been scheduled.
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