The first-degree murder trial of Jeffrey Martinson continued Tuesday with an evidentiary trial to decide what parts of the medical examiner's testimony could be admitted before the jury.

Dr. John Hu was the medical examiner who determined the cause of death for Joshua Eberle-Martinson, 5, who was found dead in August 2004 after a weekend visit at his father's apartment in Ahwatukee Foothills.

After Hu's testimony Judge Sally Duncan was asked to decide which portions of the testimony Hu was a qualified expert on.

The state's attorney, Frankie Grimsman, argued to allow Hu to testify on some photos that Grimsman said would be used to eventually set the approximate time of Joshua's death, when paired with other witness testimony. The defense attorney, Michael Terribile, argued that the state's attempt to prove the time of death was not properly disclosed.

Duncan was also asked to determine if Hu could testify to the jury what he believed the manner of death was. Hu said he determined the cause of death to be homicide, even though medical evidence found on Joshua's body was not enough to say for sure what happened.

The state argued that a medical examiner often uses circumstances outside the medical evidence to determine a cause of death. That is how a medical examiner makes a determination between homicide and suicide, for example. Hu testified that Joshua's death could have been accidental but the circumstances surrounding the death had led him to classify it as a homicide.

The defense said the medical examiner was only trained and qualified to testify about the medical evidence he or she found. Because Hu's medical evidence was so sparse, the defense argued that his testimony on the manner of death was biased and not expert.

Duncan ruled in favor of the state to allow the manner of death to be mentioned to the jury.

Hu found toxic levels of a drug called Soma in Joshua's system. The drug is only prescribed to adults and the empty bottle was found, closed, on a high shelf. Joshua also had a very small scrape on the inside of his lip, which Hu said could be consistent with forcing pills into the boy's mouth or an attempt to suffocate him. Because the abrasion was the only sign of trauma, Hu said he could not say for sure whether that was what happened, but he also could not rule it out.

Joshua was found dead in his father's apartment in 2004 after a weekend visit. His mother, Kristin Eberle, got worried when Martinson did not show up to return their son.

Martinson was found in his master bedroom with cuts on his wrist. When interviewed by police, Martinson said he had attempted suicide and passed out. When he woke, he said he found Joshua dead and then he tried to commit suicide again.

A neighbor testified earlier in court that she had received a text message from Martinson that said: "We love you and will miss you."

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