A former Ahwatukee man will have to stand trial again for the 2004 death of his 5-year-old son after the Arizona Supreme Court upheld the Court of Appeals opinion overtuning a judge’s dismissal of the case.

But when Jeffery Martinson goes to trial is anyone’s guess.

First, Martinson could further challenge the ruling in federal court. And even if he doesn’t, the County Attorney’s office still has at least several months of work to do, spokeswoman Amanda Jacinto said.

Then, law enforcement has to find the divorced father.

“Nothing is set in concrete,” said Jacinto when asked when the retrial might occur, adding it will be up to police to locate Martinson.

“This decision allows us to move forward in pressing for justice for the young victim and his mother,” said County Attorney Bill Montgomery. “We continue to be validated in our contention that evidence of premeditation should have been allowed in the original trial.”

In August 2004, Martinson, a divorced father, had a scheduled weekend visitation with his son. When victim was not returned on Sunday evening, his mother called police to check on Martinson’s home.

Once there, police discovered the defendant lying on his bed, unresponsive, with his wrists cut. In another room, they found little Joshua Eberle-Martinson dead.

A toxicology report later found evidence of a lethal amount of muscle relaxant in the child’s blood. Martinson was indicted on one count of first degree felony murder and one count of child abuse.

The case went to trial in 2011, and after opening statements, the defense made a motion to preclude evidence of intent to kill, which the Superior Court granted, erroneously relying on a 1993 case. Though jurors unanimously found the defendant guilty of both counts, they were unable to reach a unanimous decision in the penalty phase, resulting in a mistrial.

The defense made a motion for a new trial, citing juror misconduct and other errors. The trial judge granted this motion.

In order to ensure that evidence of intent would be admissible, the County Attorney filed new charges in 2012 for premeditated murder and asked that they be substituted for the older ones.  

But Superior Court Judge Sally Duncan dismissed the 2004 case with prejudice, in effect barring any prosecution.  The Court of Appeals’ ruling, which has been upheld, found that the trial court ruled in error and allows the prosecution of Martinson to resume.

Prosecutors contend Martinson deliberately killed the boy because he was upset with his visitation schedule and hated the child’s mother. He was not married to her.

Duncan first barred prosecutors from arguing the murder was premeditated. In 2013, she then tossed the case, accusing prosecutors of misconduct.

 

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