Toby McCunn

Toby McCunn

(Des Moines) — Attorneys for a man convicted of a 2019 Shenandoah murder are asking for a new trial, claiming self-defense and a tainted juror.

Attorney Mary Conroy presented oral arguments in front of a three-judge Iowa Court of Appeals panel on behalf of Toby McCunn — a Red Oak man who was convicted and sentenced to life in prison in August 2019 for the murder of Joshua Jordan. During the 2019 trial, prosecutors say McCunn lured Jordan to a house at 901 Manti Road in the early morning hours of April 22nd over some stolen property. Authorities say McCunn then shot Jordan twice following an argument. Conroy says the jury in the trial was not instructed properly on what it could and could not consider in the case, namely their instructions on how to decide if the shooting was justified. McCunn’s defense claimed the shooting was an act of self-defense after Jordan pulled a gun first.

"In this case, this is important because there was no real contestation by the defendant that the defendant did shoot the decedent in this case," said Conroy. "However, the main issue at trial is whether or not that shooting was justified. In this case, the district court failed to adequately instruct the jury on the issue of justification."

Assistant Attorney General Aaron Rogers — arguing on behalf of the state — says the actions of McCunn following the shooting do not point to self-defense. Authorities eventually took McCunn into custody several hours after the shooting following a brief standoff at another residence. Rogers says authorities found the gun used to kill Jordan hidden under a floor board in the attic, not something consistent with self-defense.

"Before leaving he said to the people at the house, 'you call 911, I'll kill you all too,'" said Rogers. "He didn't go to the hospital for a bullet wound in his leg. He hid his car in the garage and told the people who picked him up not to talk to the authorities. He didn't call the police himself, which if you've used force justifiably in self-defense, you'd think that would be the first thing that you would do."

Another portion of McCunn’s argument for a new trial centered around one juror who was kept on the jury after admitting to having some prior knowledge of the case. Conroy says the defense did not have enough strikes in jury selection to eliminate the juror from the pool.

"He indicated in his statements that he knew rumors -- I think the most concerning one -- of the defendant lying in wait, so waiting and ready to attack Mr. Jordan, and that he would not be able to put that out of his mind and give the defendant the presumption of innocence that he's required by the due process in the Constitution," said Conroy.

McCunn’s attorneys had filed for a change of venue in the case in May 2019, but that motioned was denied. Rogers argues that the juror’s knowledge of the case was typical awareness of the incident.

"Knowing something about a case isn't the same thing as having made up one's mind about guilt or innocence," said Rogers. "That's the standard for being challenged for cause, is making up one's mind about guilt or innocence. The juror said, 'I can't 100% put it out of my mind.' That's just being honest about how the human brain works."

Aside from oral arguments, attorneys from both sides submitted written arguments in the case, which will now go under consideration of the three judges from the Iowa Court of Appeals. If denied a new trial, McCunn would then have 20 days to appeal to the Iowa Supreme Court.

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