UPDATE: Charges filed in hotel deaths
by Anna Oakes
The operator of the Boone Best Western hotel on Wednesday was indicted on three counts of involuntary manslaughter and one count of assault inflicting serious bodily injury in the carbon monoxide poisonings that occurred at the hotel last year.
Assistant district attorney Britt Springer announced that a grand jury indicted Barry Damon Mallatere of Blowing Rock on all four charges sought by the district attorney's office. Mallatere was the president of Appalachian Hospitality Management, the company that manages operations at the hotel, at the time of the incidents in April and June 2013.
"The grand jury has come back with true bills on all of the charges we submitted on," Springer said at a press briefing following the grand jury's deliberations. "The charge is merely an accusation -- I want to be clear on this one. The defendant is presumed innocent until and unless proven guilty in a court of law."
The matter will now proceed to a trial in Watauga County Superior Court, where a jury will decide whether or not Mallatere played a role in the April 16 deaths of Daryl and Shirley Jenkins, ages 73 and 72, of Longview, Wash., and the June 8 death of 11-year-old Jeffrey Williams of Rock Hill, S.C.
All three died after staying in Best Western room 225, where investigators said they found concentrated levels of carbon monoxide emanating from an indoor swimming pool water heater and a faulty exhaust system.
Under North Carolina law, involuntary manslaughter is a Class F felony punishable by a maximum of 20 months in prison for someone with no prior convictions. The charge of assault inflicting serious bodily injury, also a Class F felony, is for Williams' mother Jeannie, who was hospitalized and suffered permanent damage from the carbon monoxide exposure, Springer said.
Mallatere's first administrative court date has been set for 9:30 a.m. on Feb. 17, according to the bills of indictment. Attorney Stacy "Four" Eggers IV, who is currently serving as Mallatere's defense attorney in the criminal trial, said that Mallatere had not been served with the indictments as of Thursday afternoon. He anticipated that he and his client would arrange a time with the Boone Police Department for Mallatere to be served.
"I know he's been cooperative with them," Eggers said.
Paul Culpepper, a Hickory attorney representing Mallatere, released a statement following the district attorney's announcement.
"Damon Mallatere is disappointed the district attorney has decided to press criminal charges against him in light of the facts of this matter," the statement said. "Mr. Mallatere's thoughts and prayers go out to the people affected by this tragic accident."
The Boone Police Department presented findings from its investigation to the district attorney's office in December. Springer declined to take questions at the press briefing Wednesday.
"We will take it to a Watauga County jury in the near future," she said.
Victims' families respond
On Wednesday, representatives of the Williams and Jenkins families released statements in response to the grand jury indictments.
Mark Brumbaugh, the attorney for family members of Daryl and Shirley Jenkins, said Wednesday, "The Jenkins family is pleased to learn that the Watauga County district attorney will seek criminal accountability for the deaths of Daryl and Shirley Jenkins."
Brumbaugh has said his clients plan to pursue civil lawsuits. He did not respond to additional questions sent Wednesday and Thursday.
Darrell Williams, the uncle of Jeffrey Williams, released a statement from the family following the announcement.
"Our family wishes to discover the truth," the family said. "We also want to make sure every effort is made to make absolutely certain that no other family has to go through this same needless and absolutely avoidable tragedy.
"This is a very difficult position for our family as we do not want to see any person or persons have to go to prison for an honest mistake," the statement added. "However, in this case, gross negligence and recklessness in the failure to correctly design, install, inspect, maintain and repair the hotel's pool heater system, coupled with delays in the initial investigation of Daryl and Shirley Jenkins' deaths, then a failure to act on information, directly caused Jeffrey's death and Jeannie's injuries."
At the press briefing, Springer noted that "the DA's office decided to submit to the grand jury one name, and that name being Barry Damon Mallatere."
But multiple individuals, businesses and public agencies were involved in the installation and inspection of the pool heater as well as the initial investigation of the Jenkinses' death in April.
Information uncovered in the days following the June 8 death of Williams revealed that local medical examiner Brent Hall could have requested expedited processing and analysis of state toxicology lab results in the Jenkinses's autopsies -- but did not. Still, the results confirming carbon monoxide as the cause of death for Shirley Jenkins were available June 1 -- one week before Jeffrey Williams and his mother stayed in room 225.
Hall resigned from his post in June.
The statement released by Mallatere's attorney Wednesday questioned the charges and why the investigation did not focus on the contractor, Independence Oil LLC, which converted the pool heater to natural gas service -- as well as the town of Boone's inspectors.
Independence Oil was contracted in early 2012 to perform natural gas conversions for several hotels operated by Appalachian Hospitality Management, including the Best Western. According to its contract, Independence Oil was to "pressure test all equipment to ensure a leak-free system," "replace each appliance that cannot be converted with new equipment that is equipped for natural gas," "guarantee that the existing pipe will be adequate for a natural gas system" and "require that all existing equipment must be in proper working order prior to our conversion work."
Mallatere's statement alleged that Independence Oil converted the Best Western pool heater and appliances at other hotels even though the manufacturer's manual warned that they should not be converted, and it expressed concerns about potential problems with other gas conversions performed by the company.
"Mr. Mallatere is extremely disappointed the Boone Police have decided to ignore the actions of Independence Oil in their investigation and focus solely on a business owner who entered into a written agreement with a recommended company to perform the conversions," the statement said. "Of course this would also bring into question the actions by the town of Boone for their inspection of the conversions."
A copy of the town of Boone permit form dated March 8, 2012, and inspection report dated March 22, 2012, -- provided by Culpepper -- show that a pool heater, three water heaters, two dryers and 13 gas logs at the Best Western were to be converted to gas, and that the hotel passed its inspection. The town of Boone has not fulfilled a public records request from Watauga Democrat for copies of permits and inspections at the hotel, stating they are not public records because they are part of a criminal investigation.
Independence Oil LLC is a subsidiary of Gas Natural Inc., which is also the parent company of Frontier Natural Gas. Although the company is still intact, its assets were recently sold to Blue Ridge Energies, so Independence Oil is no longer in operation, said Darryl Knight, its former president.
Knight said he could not comment on claims that the Best Western heater was improperly converted to natural gas.
"Independence Oil did the conversion work in March 2012, and the work that was performed by Independence was inspected and passed by the inspectors of the city of Boone," Knight said. He said the company's attorney met with the Boone Police Department, involved its insurance company and hired an expert witness to examine the Best Western heater. Knight said he did not know how many conversions the company performed in Boone.
"Clearly, the grand jury felt that it was negligence on the hotel's part on the improper venting and the corrosion thereof. Our work is not in question because we weren't indicted on this," he said. "It's a tragic situation. It's sad -- the chain of events that led up to this."
Reed Fountain, an attorney for the State Board of Examiners of Plumbing, Heating and Fire Sprinkler Contractors, said Thursday that Independence Oil is not currently facing actions as a result of the board's investigation of the Best Western incidents.
Boone Planning & Inspections Director Bill Bailey did not respond Thursday to a request for comment.
Various government officials, including local building inspectors, health departments and fire marshals, conduct safety inspections of hotel facilities. The investigation of the hotel deaths involved the Boone Police Department, medical examiner and others.
In December, District Attorney Jerry Wilson declined to comment when asked about what actions would be taken if the Best Western investigation revealed that a public agency erred in its duties.
In response to a similar question, N.C. Attorney General's Office spokeswoman Noelle Talley explained that "local district attorneys have the sole authority to prosecute state criminal charges."
"As far as action against employees of any of these local or state public agencies, there certainly could be internal personnel actions taken," Talley said. "There could also be private, civil legal action brought -- wrongful death-type litigation against agencies or individuals."
Watauga Democrat asked Springer if the district attorney's office considered criminal charges against other individuals in addition to Mallatere.
"The person who the state feels was criminally responsible for the three deaths has been indicted," Springer said. "That does not mean I feel others are blameless for the deaths.
"There was a complete breakdown on accountability in these deaths," she said. "The ability to stop a death from occurring because of someone else's criminal negligence is not a crime in North Carolina. There are many people who through carelessness or indifference could have stopped this tragedy but did not. I am bound by what our criminal laws are and would never charge someone criminally unless the law so supports."