KEALAKEKUA — A former Hawaii County police officer has chosen to go to trial to prove his innocence after he was charged with first-degree assault in connection with a 2014 road rage incident in Ka’u.
On April 20, Michael Dubberstein discussed with his counsel and the prosecutor a change of plea to no contest.
On Wednesday, Dubberstein changed his mind and chose to stand by his not guilty plea.
Deputy Prosecutor Stephen Frye said he was expecting the change in plea, which Dubberstein requested. The former officer was going to plead no contest to assault in the third degree mutual affray, which is a petty misdemeanor.
The charge stems from an incident on Feb. 12, 2014, where Dubberstein got into a fight with James Gonzales in the Malama Market parking lot.
According to court documents, Gonzales confronted Dubberstein at the market after the former officer drove recklessly while traveling home.
Court documents indicate Dubberstein and witness Russell Spencer confirmed Gonzales made comments to the former police officer about road rage.
“Dubberstein did not respond but placed his groceries in the vehicle and attempted to get into the vehicle,” the documents state.
The filing goes on to indicate it was Gonzales that pushed the car door onto Dubberstein’s leg, causing the defendant to react.
“Gonzales admitted he was the person that first pushed Dubberstein when he exited the vehicle,” court documents state. “It was then that Dubberstein stated he was punched in the face and exchanged blows with Gonzales, which resulted in Dubberstein taking Gonzales to the ground causing injuries to Gonzales.”
A couple days after the fight, Gonzales’ wife, Evelyn, said a tumor was found on his liver. He died of cancer on March 28, 2015.
Frye told the court Wednesday the former officer would’ve served no more than five days in jail if he had taken the plea deal. Dubberstein would have also served six months probation with a deferral, which would allow him to clear his record.
Judge Melvin Fujino told Dubberstein it was his right to go to trial. However, if convicted, the judge said, the former officer couldn’t go back to the deal previously offered by the prosecutor’s office.
Dubberstein indicated he understood the consequences.
Outside of the courtroom, Dubberstein’s attorney, Brian De Lima, said his client is asserting his right for a trial.
“Mr. Dubberstein’s conscience couldn’t enter a no contest plea because he believes he is not guilty of these allegations,” De Lima said.
Dubberstein will face a jury on June 14. He will be tried on the charge of first-degree assault, which is a class B felony.
Frye said the maximum penalty if convicted is 10 years imprisonment.
After the hearing, Evelyn Gonzales said, she was surprised.
“I had prepared to speak to Mr. Dubberstein,” she said. “It had been a few days that I had been preparing myself.”
Despite that, Evelyn Gonzales said, she was glad he kept his not guilty plea.
“I wanted this to go to trial,” she said. “When the grand jury heard witnesses and saw evidence they concluded within minutes.”
Despite that, Evelyn Gonzales said, she has been warned by the prosecutor’s office that Dubberstein could be acquitted.
“If that’s the decision of the jury, I have to go with the decision of the jury,” she said. “Of course, I’d want him to be charged in the first degree (assault). I have to take my chances, just as he is taking his chances.”
Evelyn Gonzales said she knows trial will bring up matters of her husband’s past.
“I’m not saying Jimmy was perfect but he took responsibility for everything he did,” she said.