September 24, 2009
Chief of Police
Phoenix Police Department
620 W. Washington Street
Phoenix, Arizona 85003
RE: NOTICE OF CLAIM PUSUANT TO
A.R.S. § 12-821.01
Decedent: Sophia Nunez
Date of Death: April 10, 2006
Dear Mr. Harris,
This firm represents the heirs of Sophia Nunez.
This letter shall serve as a Notice of Claim pursuant to A.R.S. § 12-821.01. The heirs of Sophia Nunez intend to pursue litigation for Sophia’s wrongful death against the above-named recipient of this claim letter if the following claim is not accepted.
This Notice of Claim letter contains a fair and accurate description of the recipient’s intentional, reckless and grossly negligent conduct. The full and complete facts regarding this claim are in possession of the Phoenix Police Department. This Notice of Claim will serve, however, as a reasonable foundation for representatives of the Phoenix Police Department to fully and completely investigate the circumstances of the claim and reach an informed decision about whether to settle.
This Notice of Claim letter also contains a fair, reasonable, and firm demand for compensation. Based on the particular facts of this matter and our research regarding wrongful death settlements and awards, we believe the amount demanded for Sophia’s heirs is reasonable and will be accepted if offered by any recipient of this Notice of Claim letter.
The nature of the claim is a wrongful death action pursuant to A.R.S. § 12-611 et seq. At the time of her demise, Sophia was not married. Her mother, Marie Nunez will bring this action for and on behalf of herself, as Sophia’s surviving mother, Sophia’s father, John Nunez, and Sophia’s 3 surviving children, Krystal Gonzalez, age 24, Unique “Nikki” Martinez, age 20, and Gilbert Martinez, age 9.
Gilbert Martinez maintained a close and loving relationship with his mother. As he was Sophia’s only male child, and much younger than his siblings, Sophia focused her attention on the young man to the point of perhaps spoiling him. As a result, Gilbert maintained a very close and loving relationship with his mother. The loss Gilbert suffered as a result of his mother’s death has been traumatic.
Gilbert’s trauma is immense, as he discovered his mother’s remains at the family home when he was 8 years old. Gilbert witnessed the aftermath of the violent death his mother sustained, and is a memory that continues with him to this day. Imagine a young 8 year old boy trying to administer artificial respiration to the remains of his murdered mother.
Unique “Nikki” Martinez, born August 25, 1989 was 17 years old at the time of Sophia’s death, and was living with her mother in the family home. Nikki was supported by Sophia, as she was a full time student at Westview High School. Subsequent to Sophia’s death, Nikki graduated from high school and now pursues her education at Glendale Community college.
Krystal Gonzalez, born November 12, 1984 moved from the family home shortly before her mother’s death. She is a high school graduate, and while Krystal pursued her education at a local community college, she now is employed Well Fargo Bank and works full time. While living with her mother and for a short time thereafter, Krystal was supported by her mother.
Each of Sophia’s daughters maintained a close and loving relationship with their mother. Each daughter relied on their mother for emotional as well as financial support and has suffered a deep emotional loss as a result of Sophia’s untimely passing.
Maria Nunez, Sophia’s mother also had a very close and loving relationship with her daughter. Sophia called her mother daily to discuss the current family situation, and sought Maria’s counsel for all things related to Sophia’s life. Maria is not employed at this time, but maintains the family home where she raised all her children. After Sophia’s untimely death, Maria has continuously participated in grief counseling at a counseling center in Good Samaritan Hospital on a weekly basis. Maria still grieves over the loss of her daughter.
John Nunez divorced Maria some years ago, but remained close to his daughter. John and Sophia communicated frequently and each remained interested in the others activities. Even with the dissolution of the Nunez marriage, the father continued to remain close to his daughter.
While he has not participated in grief counseling, John continues to feel the loss of his daughter.
Librada “Libby” Rocha is Sophia’s older sister. Throughout their lives, the sisters maintained a close and loving relationship wherein they communicated frequently and shared their lives with enthusiasm. Libby has suffered the loss of her sister equally to the loss suffered by the other claimants.
At the time of her untimely demise, Sophia was 37 years old. As described above, she had 3 children. All of those children except her oldest daughter, Krystal lived with her at the time of her death.
At the time of her demise, Sophia provided financial and emotional support to all of her children. Sophia was employed by Qwest as a manager engaged in employee training. She was employed for some years by Qwest and earned a reasonable salary of approximately $44,874 in 2005, the year before her murder. Additionally, Sophia owned a home in west Phoenix that had a listing price after the murder of $259,900. This 1,735 square foot home served as the residence to herself, Gilbert and Nikki. Obviously, Sophia was a hard working, responsible working parent supporting her children.
Sophia maintained a close emotional relationship with her children. Her children looked to her for support and comfort in their daily lives, as all children do. Sophia provided the usual routine services a mother does by providing a clean, safe, home environment and serving as an example of hard work to her children.
Obviously, all of Sophia’s relatives were and continue to be devastated by the tragic loss.
Sophia was a responsible and honest person who was brutally murdered in the family home. The loss to the dependents of love, comfort, and companionship is immense. The economic loss suffered as a result of her absence, both as a wage earner and manager of the family, is substantial.
On September 20, 2005, Mark Goudeau (“Goudeau”) approached two sisters who were walking home from a city park. He held a gun to one sister’s pregnant stomach and forced the two into the bushes, where he forced them to strip and continued to hold a gun to the pregnant sister’s stomach while he sexually assaulted the other sister. Phoenix Police eventually obtained two DNA samples. The swabs were taken from one of the sister’s left and right breasts, which Goudeau licked and later rubbed with dirt in an attempt to get rid of his saliva.
At that time, police were not aware that Goudeau was responsible for the September 8, 2005 murder of Georgia Thompson outside her Tempe apartment. Goudeau shot Thompson in the head a single time. Police also did not realize that Goudeau previously committed sexual assaults in Phoenix on August 6, 2005, August 14, 2005, and September 15, 2005.
After the sexual assault on September 20, 2005, Goudeau’s crime spree continued with a September 28, 2005 robbery in Tempe and sexual assault and robbery in Phoenix, then a November 3, 2005 robbery and sexual assault in Phoenix. Goudeau was also responsible for a string of three separate robberies in Phoenix on November 7, 2005. On December 12, 2005, Goudeau murdered pre-school teacher Tina Washington, who was on her way home from the preschool where she worked. Goudeau shot Washington in the face. On December 13, 2005, Goudeau committed yet another robbery in Phoenix.
Two months later, Goudeau brutally shot Romelia Vargas and her co-worker, Mirna Palma-Roman to death inside Romelia’s catering truck in Phoenix on February 20, 2006. On March 15, 2006, he committed yet another double homicide in Phoenix, this time shooting two employees of Yoshi’s Fast Food Restaurant in the head. Goudeau was also responsible for the March 29, 2006 murder of Kristin Nicole Gibbons. As he did with multiple other victims, Goudeau shot Gibbons in the head.
On April 10, 2006, Sophia Nunez's eight-year-old son found his mother dead in her bathtub. Goudeau shot her as well. Next, Goudeau committed a May 1, 2006 sexual assault at gunpoint outside the same restaurants he robbed on November 7, 2005, and finally, he murdered Carmen Miranda on June 29, 2006 in Phoenix. Goudeau abducted Miranda from a self-serve carwash near the scene of his May 1, 2006 and November 7, 2005 crimes. He shot her in the head behind a nearby barbershop, and the murder was captured on closed circuit television. That was Goudeau’s final murder.
Goudeau was ultimately responsible for no fewer than 9 murders, 15 sexual assaults and 11 kidnappings over the span of a little less than eleven months.
The DNA Evidence
Although Phoenix Police obtained DNA samples from one of the sisters Goudeau sexually assaulted on September 20, 2005, they intentionally waited until June of 2006 to send it to the Department of Public Safety (“DPS”) for Y-STR DNA testing. DPS immediately matched both DNA samples to Goudeau, including a sample the Phoenix Crime Lab previously tested without success.
Approximately one month after securing the DNA from the September 20, 2005 sexual assault, the Phoenix crime lab performed a partial analysis of the evidence and determined that saliva was present on both of the swabs. Members of the crime lab tested one of the swabs, the one from the right breast, and decided not to test the left one, which had dirt on it. The test results showed a partial DNA profile which was insufficient to identify a suspect given the DNA technology used by the Phoenix crime lab at the time.
Despite the urgency of resolving the case, and rather than sending the swabs to the DPS crime lab where the newer Y-STR testing was immediately available, an intentional decision was made to forego testing and store the swabs in an evidence locker until such time as the Phoenix crime lab was equipped with the ability to conduct Y-STR testing. The sole reason for this intentional decision not to send the swabs to the DPS crime lab for immediate Y-STR testing was so the Phoenix crime lab could be the lab to test the swabs and obtain the results of the Y-STR DNA testing on the swabs.
At the time of the decision to store rather than test the swabs at the DPS crime lab, the Phoenix crime lab was aware the DPS crime lab had the ability to conduct Y-STR DNA testing and the Phoenix crime lab had routinely sent other items of evidence to the DPS crime lab for testing in many unrelated cases. The Phoenix crime lab could have easily sent the two swabs to the DPS lab for Y-STR DNA testing had they chose to send them.
While the Phoenix crime lab was unable to perform the Y-STR DNA test, the DPS crime lab had been conducting Y-STR DNA testing since April 2005, months before Goudeau began his crime spree. Although the Phoenix Police Department outsourced a significant amount of scientific testing work to DPS, they decided not to ask DPS for help. Instead, a decision was made to hold onto the swabs and delay testing until the Phoenix Crime Laboratory could conduct Y-STR testing itself.
The reason for the intentional delay in testing the DNA evidence was based entirely on a selfish motive. The Phoenix Police Department wanted to solve the well-publicized “Baseline Killer” case without outside help. Intentional decisions were made to withhold referring the evidence to other police agencies, notably DPS, in order to make sure all credit and accolades went to the Phoenix Police Department.
Sometime after the series of initial attacks, members of the investigative team began to believe that one individual was responsible for the series of attacks. Investigators’ concerns arose before the murder of Sophia Vargas. Only because of the public outcry and a change of management was DPS finally asked to examine the DNA evidence. Claimants believe that this Notice of Claim request was made sometime in late summer of 2006, well after the violent series of murders that included Sophia's murder had ended.
DPS not only found Goudeau’s DNA on the untested left breast swab from the September 20, 2005 sexual assault, but also on the right breast swab from which the Phoenix crime lab only obtained a partial match. After putting the DNA profile into the Combined DNA Index System, DPS matched it to Goudeau, who was immediately arrested in September of 2006. Had the two swabs been tested earlier, the murders in question would not have occurred.
Claimants believe that the above facts are a fair and reasonable description of the events giving rise to this Notice of Claim letter. The basic facts are in the possession of the Phoenix Police Department, and the above information should serve as a reasonable basis for representatives of the Police Department to investigate the allegations of this claim. See Deer Valley Unified School District No. 97 v. Houser, 214 Ariz. 293, 152 P.3d 490 (2007).
The factual foundation for this claim is the intentional, reckless and grossly negligent conduct by members of the Phoenix Police Department and the Phoenix Crime laboratory that directly lead to Sophia's murder on April 10, 2006. The perpetrator of this crime is Goudeau, deemed the “Baseline Killer” by the local press. Sophia is but one of Goudeau’s many victims, and had the Phoenix Police Department and its crime lab outsourced DNA testing to DPS in a timely and reasonable manner, not only would her murder not have happened, but several other tragedies would have been avoided as well.
Throughout the fall of 2005 and for the next year thereafter, Goudeau committed a series of violent crimes on random members of the public. Goudeau committed 9 murders and 15 sexual assaults in at least 16 different violent crimes.
The Phoenix Police Department gathered 2 separate DNA samples from a victim of a sexual assault in September 2005. This evidence was from the perpetrator of the crime. Had this evidence been timely studied, the results would have ended Goudeau’s crime spree. Phoenix had reason to believe that the series of violent crimes was being committed by one person before February of 2006. However, this evidence was not subjected to testing until summer of 2006, approximately 1 year and 9 murders later.
Claimants believe the evidence will show that members of the Phoenix Police Department, including those acting in a supervisory capacity as well as managers, purposefully decided not to test the above described DNA samples for reasons having nothing to do with reasonable police practices and procedures. They were motivated by public relations and inter-agency competition. Simply put, members of the Phoenix Police Department and Phoenix crime lab wanted credit for solving the crimes. This decision not to test was an intentional act and outrageous in nature.
In the alternative, the decision not to test the DNA sample was reckless or grossly negligent, as the members of the Police Department and Phoenix crime lab knew and understood the alternative to not testing the DNA samples was that further violent crimes would lead to more injured victims and grieving families. As the number of sexual assaults and murders grew during the remainder of 2005 and continued growing well into 2006, the callousness of the decision not to test the DNA became obscene.
There is no question about the effect of testing the DNA sample. The DNA test DPS conducted immediately led to the arrest of the perpetrator of the sexual assaults and murders, including Sophia's murder. The arrest was a direct result of the testing without any discussion or professional decision as to whether the owner of the DNA should or should not have been arrested.
It is clear and undisputed that as a direct and proximate result of the Phoenix Police Department’s intentional, reckless and grossly negligent decision not to test the DNA, Sophia was murdered. But for the intentional, reckless and gross conduct of managers and supervisors at the Phoenix Police Department and the Phoenix Crime Laboratory, she would be alive today.
The culpable members of the Phoenix Police Department and recipients of this Notice of Claim letter are the following.
Tracy Montgomery, Assistant Chief of Police, Phoenix Police Department: Chief Montgomery was in a position of authority in the “Baseline Killer” case and exercised management and control over the DNA evidence described above. Chief Montgomery participated in the decision to delay testing.
Brett Vermeer, Phoenix Police Crime Lab Commander: Mr. Vermeer was in a position of authority regarding the “Baseline Killer” case, as he managed and controlled the Phoenix Crime
Lab and had authority to process or outsource testing of the DNA evidence from the September 2005 sexual assault. His decision not to process the evidence was made for no good professional reason.
Roger Schneider, DNA Supervisor, Phoenix Police Crime Lab: Mr. Schneider was in a position of authority regarding the “Baseline Killer” case, as he managed and controlled the Phoenix Crime Lab and had authority to process the DNA evidence from the September 2005 sexual assault. His decision not to process the evidence was made for no good professional reason.
Allison Sedowski, Assistant to Roger Schneider: Ms. Sedowski was in a position of authority regarding the “Baseline Killer” case, as she participated in the management and control the Phoenix Crime Lab and had authority to process the DNA evidence from the September 2005 sexual assault. Her decision not to process the evidence was made for no good professional reason.
Benny Pina, lieutenant Phoenix Police Department: Lt. Pina was in a position of authority regarding the “Baseline Killer” case, as he managed and controlled the investigation of the “Baseline Killer” case and had authority to order the testing of the DNA evidence from the September 2005 sexual assault. His decision not to process the evidence was made for no good professional reason.
Andy Anderson, Assistant Chief of Police, Phoenix Police Department: Chief Anderson was in a position of authority regarding the “Baseline Killer” case, as he managed and controlled the investigation of the “Baseline Killer” case as well as the Phoenix Crime Lab. He had authority to order the testing of the DNA evidence from the September 2005 sexual assault. His decision not to process the evidence was made for no good professional reason.
Jack Harris, Chief of Police, Phoenix Police Department: Chief Harris was in a position of authority regarding the “Baseline Killer” case, as he managed and controlled the investigation of the “Baseline Killer” case, as well as the Phoenix Crime Lab. He had authority to order the testing of the DNA evidence from the September 2005 sexual assault. His decision not to process the evidence was made for no good professional reason.
The Claimants believe that all of the above participated in the decision not to test the DNA evidence gathered from the September 2005 sexual assault long after it was common knowledge within the department that one violent, serial criminal was committing rapes and murders in Phoenix. Claimants believe that any of the above could have decided to refer the DNA evidence to the DPS crime lab for proper testing prior to February 20, 2006, which would have prevented Sophia's death.
The following is a description of the damages suffered by each Claimant:
Sophia earned $44,784 as an employee of Qwest in 2005. She was on track to earn an equal amount in 2006 had she not been murdered. Sophia’s life expectancy was approximately 40 additional years, during which time she could be expected to work until she was 65 years old, or for another 28 years. Over the course of her working life, Sophia could therefore be expected to earn $1,253,952.00. That money would go to support her family and her children left the family home, to continue in such support.
Furthermore, Sophia served as a caregiver for her family. She engaged in the usual household chores, such as cooking, cleaning, and providing a safe environment for her family. There is a cost to replacing this service. While there are no receipts for the replacement service, nevertheless, Claimants can calculate that Sophia provided such services for approximately 4 hours each day during the week and 16 hours over the weekend. This computes to 36 hours per week that need to be replaced. Assuming a cost of replacement of $10 per hour, Sophia’s death has a value of approximately $360 per week or $18,720.00 per year. Over the total life of the community existing with Gilbert while he remained a minor, 10 years, this would amount to $187,200.00.
There are no exact documents supporting the damage claims, as the family has stepped forward to provide replacement service providers and no heirs have sought the services of a health care provider. However, the loss of a mother or wife is profound and will be remembered throughout each heir’s life.
Damages in a wrongful death cases are subjective. Damages are for the loss of the financial and emotional support of the decedent. Here, the financial support is notable in that the mother made a stead wage but shared her money without hesitation with her children. However, it is important to note that Sophia did work hard, was very industrious, and shared her income with her family.
Each Claimant has a separate burden of proof pursuant to A.R.S. § 12-611 et. seq. Therefore, each Claimant will present a separate Claim for damages.
Krystal is the oldest of Sophia’s children. She lived continuously with Sophia throughout her minority, until shortly before Sophia’s death. Throughout her life, Sophia provided for Krystal’s financial support. Even after Krystal left the age of minority, Sophia still contributed when Krystal asked. Further, Sophia contributed to Krystal’s health and welfare by providing services for her and offering the love, comfort, guidance, and support one would expect from a loving mother. The loss has been profound for Krystal, as it has been for all of Sophia’s relatives.
There is little in the way of supporting documentation for Krystal’s claim. There are no medical bills, psychological counseling, or other such objective indication of Krystal’s loss. Rather, she has suffered from the loss of her mother, the one consistent source of love and comfort in her young life. A mother’s guidance is perhaps needed most during the time when a young adult must make decisions that will affect them over the course of their entire life. Krystal has suffered from that loss.
Assuming that she benefitted from Sophia’s income or services to any degree, there is some objective monetary value to be added to the claim. A review of wrongful death damages suffered by adult daughters for the loss of their mothers shows damages ranging from $100,000.00 to $3,000,000.00. Krystal believes that $2,500,000.00 is a reasonable and fair value to settle her claim.
Nikki is the next oldest of Sophia’s children. All that describes Krystal’s relationship with her mother also describes Nikki’s relationship with her mother. Mother and daughter had a loving and supportive relationship. The loss of her mother was also profound. Nikki also benefitted from her mother’s financial support and services. She remains a member of the family and is not to this date has only started to become a self supporting adult. Since then, she has attempted to deal with the realities of living as an adult. Now more than ever, she misses her mother’s support and comfort, as being alone in the adult world is very difficult.
As for Nikki’s damages, the same analysis for Krystal applies to Nikki. There is a large range of values for an adult daughter’s loss of her mother. However, unique to Nikki's situation, the loss came at an important time in his life. The damages range from $100,000.00 to $3,000,000.00, and Nikki believes that $2,500,000.00 is a reasonable and fair value to settle her claim.
Gilbert was 8 year old when his mother died. He is presently in Middle School and continues to miss his mother. Gilbert participates in the usual sports activities of a young man his age, but has no mother to cheer for him when he does. While the same statement of damages for the other children applies to Gilbert, he would have remained with his mother for many more years had Sophia survived.
Sophia would have supported Gilbert financially and provided services for him until well after college. This financial damage could easily be calculated to exceed $50,000.00. Furthermore, the loss of the love, comfort and companionship of his mother has a value equal to, or even in excess of, the other adult children. A strong mother-son relationship is particularly important for a maturing young man, and Gilbert was deprived of the guidance of his mother during this important time of his life. Damages for an adolescent son can range from $100,000.00 to $4,500,000.00.
However, extenuating circumstances exist in Gilbert’s case. Gilbert was unfortunate enough to have discovered his mother’s remains, and given his age, thought that artificial respiration might save her. He actually attempted to resituate his mother. Gilbert witnessed the brutality that Mr. Goudeau was capable of. Because of the value of these special circumstances, we believe that 8,000,000.00 is a reasonable and fair value to settle his claim.
Libby Rocha was Sophia’s older sister. Pursuant to A.R.S. §12-611 et seq. we believe she also has a claim. Libby maintained a close and loving relationship with her younger sister, and shared a great many things with her. Libby has suffered a loss because of the murder of her sister that could have been easily avoided. We believe her loss is between $500,000.00 to $1,500,000.00. A settlement is made on her behalf of $1,000,000.
Maria Nunez is Sophia’s mother. Her loss has been profound. Maria has sought counseling for her grief through the services of a counseling center at Good Samaritan Hospital. The loss of a child, by violent circumstances is always traumatic. We believe Maria’s claim has a value between $1,500,000.00 to over $2,500,000.00. We believe a settlement value for Maria’s claim is $2,000,000.00.
John Nunez is Sophia’s father. The loss of his daughter has been sorely felt and traumatic. While he has not sought treatment through a formal counseling organization, he nevertheless has suffered the loss of a child. We believe John’s claim has a value between $1,500,000.00 to over $2,500,000.00. We believe a settlement value of John’s claim is $2,000,000.00.
In conclusion, pursuant to Deer Valley Unified School District No. 97 v. Houser, 214 Ariz. 293, 152 P.3d 490 (2007), we submit the following firm settlement offers:
Gilbert Martinez $8,000,000.00
Nikki Martinez $2,500,000.00
Krystal Gonzales $2,500,000.00
Libby Rocha $1,000,000.00
Maria Nunez $2,000,000.00
John Nunez $2,000,000.00
If you have any questions, we suggest you contact the legal department for the City of Phoenix. We look forward to a quick and reasonable settlement of this matter.
Marc J. Victor
Cc: Gilbert Martinez