Justin Raynal Cotton will face a possible death sentence if convicted of robbing and killing a man in Addor.

A second defense attorney will be appointed to join Bruce Cunningham as a result of Wednesday's Rule 24 hearing in Moore County Superior Court. The state's Office of Indigent Defense assigns court-appointed attorneys in such cases, and capital cases require two attorneys.

Cotton, 18, and Martin Devon McMillan, 19, are charged with first-degree murder, robbery with a dangerous weapon and conspiracy to commit robbery.

About 10:31 p.m. May 15, deputies found Donald Ray Sands, 43, of Aberdeen, shot to death. They discovered his body in a car near a white mobile home in an area at the end of Gillespie Street, a sandy road, in Addor after receiving a call about a vehicle accident.

Enough possible aggravating circumstances exist for jurors to weigh to justify making this a capital case, according to District Attorney Maureen Krueger.

"Mr. Cotton and the codefendant together participated in the robbery and murder of Mr. Sands," Krueger told Webb. "He was alone, somewhat disabled, and shot as he tried to get away."

Both had committed robberies before, and so this was a course of conduct -- an aggravating factor -- according to Krueger. Murder committed in the course of committing another violent crime -- armed robbery in this case -- is also an aggravating circumstance.

In capital cases, jurors enter a second phase after returning a guilty verdict to decide between life without parole or death. They weigh mitigating and aggravating circumstances and return a binding recommendation to the judge.

Aggravated murder is a separate crime, Cunningham contended. His motions challenged the hearing and argued that the court lacked jurisdiction to conduct any hearing where there had not been an indictment by a grand jury.

"Unless a grand jury finds probable cause that one or more aggravating factors exist, there can't be a capital case," Cunningham said. "In North Carolina, the maximum punishment for first-degree murder is life without parole."

He contended that the state constitution says nobody can be tried unless indicted by a grand jury. He argued that conducting this hearing denied due process, and that the court lacked jurisdiction to try a death sentence case unless a grand jury indicts for that.

"For 700 years, the grand jury has performed the function of serving as a screen between the state and the citizen," Cunningham said. "Only a grand jury can decide what crimes a citizen can be tried for."

No case law exists that clearly says whether or not aggravated murder is a different crime from murder, in the meaning of the law, and so must be separately charged and separately indicted, he contended.

"Our position is that this is a case of 'first impression'," Cunningham said. "If Mr. Cotton had already been charged with a capital offense, he would already have a co-counsel."

Krueger asked Webb to deny Cunningham's motion.

"The short-form indictment has been held time and time again to be due notice (of the possibility of capital punishment)," she said. "None of the cases (cited by Cunningham) address-ed whether a grand jury needed to be involved."

Senior Resident Superior Court Judge James M. Webb agreed with her. He overruled Cunningham.

Cotton is being held in Morganton under a safekeeping order and was not present in court. McMillan's attorney, Tim Morris, joined Cunningham and offered the same motions orally. Webb ordered transcripts provided to both defendants as well as the state.

Krueger had prepared a Rule 24 order. Webb, who granted a defense request that the order be amended to include a paragraph about denying or overruling the defense objection. Hearings on pretrial motions will take place in January.

Contact John Chappell at 783-5841 or by e-mail at jchappell@ thepilot.com.