CHARLOTTE, N.C. -- On Tuesday morning, Andre Hampton will go on trial for his life in a Mecklenburg County Courtroom.

The 27-year-old man was arrested in November of 2008 for brutal, fatal beating of Elijah Burger, his 23-month-old son.

On Monday, his attorneys tried to get his confession thrown out by arguing that he had been in custody when Steve Arnold, the first responding officer, allegedly heard him admit to a paramedic that he beat his son.

Either a fireman or medic lifted up the small child, he was at eye level, I saw multiple bruises, based on my experience I knew the child was deceased, said Arnold.

In the pretrial hearing, Arnold said he considered Hampton a suspect, but he did not arrest or detain him.

Hampton s attorneys argued that he was in custody, and should have been read his rights.

Arnold said he overheard a key conversation between Hampton and the medic.

Asked if he had struck the child with a belt...he replied, All over, said the officer.

Judge Forest Bridges ruled that Hampton was free to leave at anytime and therefore not in custody, so his confession is admissible.

Prosecutors are seeking the death penalty in the case, they say the beating was so severe they will try and prove murder by torture.

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