A man who joked on tape about whether his baseball-bat beating caused his victim to become “retarded” had his conviction for attempted first-degree murder vacated Tuesday after appellate judges ruled that Spokane County prosecutors erred by omitting the word “premeditation” in charging documents.
The Division III Court of Appeals dismissed “without prejudice” the attempted first-degree murder charge against 26-year-old John T. Mellgren, who was convicted last year of beating 22-year-old Robert “Drew” Schreiber outside the Grove Apartments in Cheney.
The ruling means that Spokane County prosecutors can refile the attempted murder charge if they wish. Spokane County Prosecutor Larry Haskell did not immediately return a call seeking comment about how he intends to proceed.
“The outcome of this appeal depends on procedural facts rather than facts of the underlying crime,” Judge George Fearing wrote. “On appeal, John Mellgren challenges the sufficiency of the charging information for attempted first-degree murder. He argues that the information failed because it did not employ the word ‘premeditation.’ We agree.”
The ruling enraged Alan Schreiber, 56, of Pasco, who is the father of the victim. He noted his son continues to battle the effects of the beating, which prompted doctors to place him in an induced coma during a 45-day hospital stay following the attack.
“They had to remove half of the top of his head twice to keep him alive,” Alan Schreiber said of his son. “He was a minute a way from dying. How is this fair to anybody? How is this right? This is not the way this should work.”
The news of the dismissal came the same day Drew Schreiber was visiting a college in an effort to get his life back on track. At the time of the beating, Schreiber had recently transferred to Eastern Washington University after finishing third in the Pac-12 Championships in the 4x400 relay while competing for the University of Washington.
“My son has got some serious challenges because of what those animals did to him,” Alan Schreiber said. “For (Mellgren) to get off of an attempted premeditated murder conviction because they left out one word, how do you think we feel? It’s just really upsetting.”
Prosecutors reached out to the family Tuesday, but said they have not yet made the decision to refile the charges, Schreiber said.
Kevin Griffin, the defense attorney who defended Mellgren, was in a trial Tuesday and could not immediately be reached for comment.
While records indicate that Mellgren also previously ran for the EWU track team, witnesses said the men did not know each other prior to the incident.
The case began on the night of Oct. 8, 2016, when witnesses said Drew Schreiber began acting erratically during a party at the Grove Apartments.
Sometime during the party, Schreiber grew angry and jumped from his second-story window and chased the car containing Mellgren, Damian C. Dunigan Jr. and Josh Sonnabend, according to court records. Dunigan later pleaded guilty to second-degree assault and was sentenced to 21 months in prison.
Schreiber jumped on Mellgren’s car and smashed out the back window with his knee. The three men exited the damaged car and then chased Schreiber.
“The three tackled Schreiber to the ground and then punched and kicked him,” court records state. “Mellgren held a baseball bat in his hands and struck Schreiber in the head with the bat as Schreiber laid in the fetal position. According to one witness, Mellgren angrily swung the bat as if ‘chopping wood’ while striking Schreiber four to six times in the head.”
The bat, which was bent during the attack, was found to have Schreiber’s blood on it when it was found in the trunk of Mellgren’s car, according to court records.
Despite that, Mellgren reportedly denied being present during the beating. However, police found what appeared to be blood on his shoes when he was arrested five days after the assault, according to court documents.
While in jail, Mellgren was recorded talking to his girlfriend about the beating. Deputy prosecutors Dale Nagy and Jennifer Zappone played the tape for the jury.
“See? I knew he wasn’t going to die,” Mellgren said on the tape. “Has he said anything or was he like, ‘I’ve got a headache?’ ”
Later in the video, he jokingly asks his girlfriend if he made Schreiber “retarded.”
“They try to make it seem like I put him in a coma,” Mellgren said in the recording. “It’s whatever. I probably shouldn’t talk too much about it.”
The jury convicted Mellgren of attempted first-degree murder and first-degree assault. Superior Court Judge John Cooney later sentenced Mellgren to 15 years in prison.
Alan Schreiber said he hopes the state keeps Mellgren in prison on the first-degree assault conviction pending the decision by prosecutors about how to proceed with the attempted first-degree murder charge.
“I just hope that they do not find some technicality on that one,” he said of the assault conviction. “Leaving one word out of some paperwork is ridiculous to get someone off a 15-year sentence. How does that make sense? How does that help society? This is wrong.”
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