Andre Hampton, accused of beating his 23-month-old son to death in 2008, faces a possible death sentence when he goes on trial Monday for murder.

Hampton, 26, is charged with first-degree murder in the killing of Ellijah Burger at a west Charlotte motel.

Mecklenburg prosecutors announced two years ago that they would seek the death penalty against Hampton and two other men in 2012. Putting the three men on trial for their lives signaled a more aggressive strategy to deal with the most heinous crimes. In the previous decade Mecklenburg prosecutors had tried just four capital murder cases.

Ellijah was beaten inside a motel room at a complex then called AARCS Residence Suites on South Tryon Street, where his family had been living.

“The child had multiple bruises on his body and the father admitted to hitting him with a belt,” the medical examiner wrote in his autopsy report.

The medical examiner concluded that “abusive beating” was one of the probable causes of Ellijah’s death. The other was multiple blunt-force trauma with injuries to the head and body.

Ellijah’s entire body was covered with bruises, the medical examiner said.

“Bruising is noted to the palms and fingers as well as the back of the hands,” the autopsy report said. “The hands are also swollen and there are abrasions of all the knuckles, the tips of some of the fingers and thumbs and broken nail tips. … There is bruising of the bottoms of the feet and the toes.”

The defense’s approach

Defense lawyers Joe VonKallist and Norman Butler have notified prosecutors of their intent to offer at trial “a defense of diminished capacity and automatism.”

In diminished capacity defenses, defendants may claim that they did not have the mental state or intent to commit the crimes because of emotional distress, physical conditions or other psychological factors. Their mental capacity, for example, may have been diminished by intoxication, trauma or mental illness.

Automatism is an involuntary act such as sleepwalking that is performed in a state of unconsciousness. Automatism has been used as a defense to show that a defendant lacked the requisite mental state for the commission of a crime.

The defense attorneys also are seeking a judge’s order restricting what prosecutors can tell jurors during their opening statements and closing arguments. They don’t want prosecutors to argue that Hampton’s failure to testify or make a statement to law enforcement officers is evidence of a lack of remorse.

The defense attorneys also have asked the judge to prohibit prosecutors from asking jurors “to put themselves in the victim’s place” or comparing Hampton to “a member of the animal kingdom” or to “other notorious crimes or criminals.”

“Such arguments by the prosecution would subject the defendant to cruel and unusual punishment, would deny him due process, a fair and impartial jury and would be highly prejudicial,” the defense lawyers argued.

A violent history

There’s evidence of violence between Ellijah’s parents – including a restraining order that claims Andre Hampton beat his girlfriend when she was pregnant.

Twice in the year before Ellijah’s death, Hampton was charged with assaulting Ellijah’s mother, Lashinna Burger. The charges were dropped because of insufficient evidence, according to court records.

A May 2008 restraining order mentioned a fight that sent Lashinna Burger to the hospital and Hampton to jail.

Hampton “fractured my arm and abused my stomach. I have papers for proof,” Burger wrote in her request for a restraining order. “He fractured my arms. He throws things at me (pillows), he calls me a (expletive) all the time. He does things to make me want to hit him first, so that he can hit me in return.”

The restraining order said the alleged assault happened while Burger was pregnant. It also accused Hampton of abusing drugs.

It typically takes two or three weeks – sometimes longer – to pick a jury in death penalty cases. Jurors in capital trials must be able to at least consider imposing the death penalty. Those who won’t consider the death penalty as a possible punishment are not allowed to serve on the jury.

If Hampton is convicted of first-degree murder, the jurors will have to decide if he is sentenced to death or life in prison without parole.