COURT OF APPEALS OF VIRGINIA

Present: Judges O’Brien, Causey and Friedman Argued by videoconference

MALIK BROWN MEMORANDUM OPINION * BY v. Record No. 0834

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- 1 JUDGE FRANK K. FRIEDMAN MARCH 14, 2023 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH

Stephen C. Mahan, Judge Kristin Paulding ( 7 Cities Law , on brief), for appellant. David A. Mick , Assistant Attorney General (Jason S . Miyares, Attorney General ; David M. Uberman, Assistant Attorney General, on brief), for appellee.

Malik Brown (“appellant”) was convicted by a Virginia Beach j ury of second

- degree murder and use of a firearm in the commission of murder. When the jury returned the guilty verdicts, appella nt asked to poll the individual jurors. Two of the jurors inadvertently were not polled; however, no objection was made at the time. After the jury announced a twenty

- five

- year sentence, appellant again requested a polling of the jury. This time, all t welve jurors were polled and agreed that this was their sentence. Much l ater, appellant moved to set aside the verdict because the jury was not unanimous. While the final sentencing hearing was at first continued so the two jurors could be brought to court to verify their verdicts, the trial court later denied appellant’s motions for a mistrial and to set aside the verdict, as well as his motion to bring the jurors back to court.

* T his opinion is not designated for publication

. See Code § 17.1

- 413. UNPUBLISHED- 2

-

This appe al follow s , with appellant claiming that the trial court erred in convicting him of second

- d egree murder and use of a firearm in the commission of a felony. Appellant also argues that the trial court erred in denying his motion for a mistrial and his requ est to subpoena two of the jurors after they had been discharged. For the following reasons, we affirm the trial court’s rulings.

I. Factual Background and Trial Testimony On appeal, “we review the evidence in the ‘ light most favorable ’ to the Commonwealth.” Clanton v. Commonwealth , 53 Va. App. 561, 564 (2009) ( en banc ) ( quoting Commonwealth v. Hudson , 265 Va. 505, 514 (2003) ). That principle requires us to “discard the ev idence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom.” Kelly v. Commonwealth , 41 Va. App. 250, 254 (2003) ( en banc ) (quoting Watkins v. Commonwealth , 26
Va. App. 335, 348 (1998)). On March 3, 2019, appellant went to a club in Virginia Beach called “The Cave” with his girlfriend, Cornelia Taylor. They were joined by Taylor’s friend and appellant’s cousin

. Another grou p was present at The Cave that night , including Malcolm Jones, Deshawn Douglas , and Kiara Broadnax. As T he Cave was getting ready to close for the night, Broadnax and Taylor got into an argument. When The Cave closed, Jones ’ group left and went to 7

- Eleven. Appellant’s group had also stopped at the same 7

- Eleven. I nside the 7

- Eleven, Broadnax and Taylor argued again. As Jones separated the two women, Taylor accidentally hit Jones

. Jones then “shoved [Taylor] a little

. ” Appell ant became agitated and told Jones not to touch Taylor

. Eventually, they all exited the 7

- Eleven. Taylor and Broadnax began to fight again, and
Jones again broke up the altercation. As this was happening, both appellant and Douglas had- 3

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guns drawn

. Wh en appellant saw that Douglas had a gun, appellant said , “this don’t need to go on” and shook Douglas’ hand. Both men then put their weapons away. However, Jones was upset because appellant had pulled his gun out . Jones said things like , “Come fight me if you want to fight me. Don’t pull the gun out.” Douglas repeatedly tried to convince Jones to leave, but Jones remained upset, even though appellant had by then put his gun away in the trunk of his car. Jones walked toward appellant, and appellant ope ned the trunk of his car and retrieved his gun. Appellant then got into the front passenger seat of his car; Taylor was in the driver’s seat. Appellant’s vehicle began backing up, and Jones walked toward it. Jones was unarmed and was not threatening o r yelling at appellant. Surveillance video 1 of the parking lot shows
Jones walking past the front of appellant’s car , crossing toward the front passenger window , as the car reversed

. When the car stopped , Jones was standing close to the front passenger window where appellant was seated , and Douglas was a few feet behind him. Appellant’s car then “paused for a second.” Douglas saw one shot fired from the front passenger window, and Jones immediately fell to t he ground, saying, “He shot me.” Appellant’s car drove off, and Douglas fired “a few shots” after it. Jones was taken to the hospital but died from the gunshot wound.
A t trial, a ppellant took the stand in his own defense. He testified that he did not pull his own gun out until after he had seen Douglas holding his gun at his side in the parking lot. Appellant explained that he was concerned for his safety and that he shook hands with Douglas as an attempt to make peace or deescalate the situation. He also testified that after Jones confronted him about having a gun, a ppellant put his gun in the trunk of his car because he

1 “[W] e, on appellate review, view video evidence not to determine what we think happened, but for the limited purpose of determining whether any rational factfinder could have viewed it as the trial co urt did. ” Meade v. Commonwealth , 74 Va. App. 796, 806 (2022)

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wanted to “defuse all the problems” and leave the situation. Appellant testified that after Jones saw him put his gun away in the trunk, Jones was “really, like, trying to fight me now.” Appellant stated that he did not want to fight Jones and just wanted to leave.
A ppellant explained that he eventually retrieved the gun from the trunk of his car because every time his group atte mpted to get in their car, Jones and Douglas started “walking up towards” their car and threatening them. Appellant acknowledged that as he was going to get the gun from the trunk, the rest of his group was encouraging him to get in the car and leave. He stated that he was “equal[ly]” determined to get his gun as he was to leave the scene.
A ppellant then got into the car and Taylor, who was driving, began to reverse out of the parking spot

. A ppellant testified that a s the car reversed , Jones stood in front of the car to block it from accelerating forward . Appellant felt “trapped” and like something “was about to happen”
to him.
Jones then went around to the passenger side of appellant’s vehicle. Appellant saw Douglas walking up behind Jone s with his gun at his side . As Douglas approached, appellant heard him say to Jones , “Come on, bro. I will air his shit out.” Appellant was afraid and fired his gun once in their direction. Appellant explained that while he fired intentionally , he did not know where he was aiming. He said that he fired his gun because he felt like “a sitting duck” and was afraid Douglas was about to shoot at their car. H owever, h e acknowledged that Jones was not blocking appellant’s car from leaving when appellant fi red the gun. He also acknowledged that he had

never seen Jones with a gun and that Jones had not threatened to kill him, though he maintained that Jones did threaten to “hurt” him. Appellant testified that after he shot, his car drove off and “shots star ted getting fired towards our car.” A t the time , appellant did not realize his bullet had hit anyone. The next- 5

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morning, appellant learned that someone had been shot during the altercation. Appellant was “afraid” and threw the gun he had used off a bridg e. Appellant was arrested later that day

. Appellant acknowledged that he was a three

- time convicted felon. He explained that he had the gun on him for protection because he grew up in a neighborhood where gun violence was prevalent. He stated that he h ad first been shot at when he was only ten years old. When he was twelve years old, his father was shot and killed. Appellant also had several friends who were killed by gun violence. At the close of all the evidence, appellant made a motion to strike b oth charges, arguing that the evidence showed self

- defense rather than malice. The court denied his motion, and the jury convicted him of both charges. He was sentenced to twenty years on second

- degree murder and five years on use of a firearm in the com mission of murder.
II. Sufficiency of the Evidence Appellant’s first three assignments of error relate to the sufficiency of the evidence, alleging that the trial court erred in upholding the jury’s guilty verdict relating to second

- degree murder because he purportedly acted in self

- defense, or alternatively because he did not act with malice. He also alleges that the trial court erred in finding him guilty of use of a firearm in the commission of a felony because the evidence was insufficient to support his conviction for second

- degree murder.
A. Standard of Review When reviewing the sufficiency of the evidence, the evidence must be considered in the light most favorable to the Commonwealth, and the judgment of the trial co urt may be reversed only when its decision “is plainly wrong or without evidence to support it. ” Smith v. Commonwealth , 296 Va. 450, 460 (2018) (quoting Commonwealth v. Perkins , 295 Va. 323, 327 (2018) )

. “[T]he relevant question is, upon review of the ev idence in the light most favorable to- 6

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the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Secret v. Commonwealth , 296 Va. 204, 228 (2018) (quoting Dietz v. Commonwealth , 294 Va. 123, 132 (2017)). “If there is evidentiary support for the conviction, ‘the reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from the conclusions reached by the finder of fact at the trial.’” McGowan

v . Commonwealth , 72 Va. App. 513, 521 (2020) (quoting Chavez v. Commonwealth , 69 Va. App. 149, 161 (2018)). Furthermore, the appellate courts must “discard any of appellant’s conflicting evidence, and regard as true all credible evidence favorable to the C ommonwealth and all inferences that may reasonably be drawn from that evidence.” Gerald v. Commonwealth , 295 Va. 469, 473 (2018). “The credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented.” Smith v. Commonwealth , 56 Va. App. 711, 718 (2010) (quoting Sandoval v. Commonwealth , 20
Va. App. 133, 138 (1995) ). Credibility issues “will not be disturbed on appeal unless plainly wrong.” Id.
B. Self

- Defense Appellant first argues that the evidence was insufficient to support a conviction for second

- degree murder bec ause it instead showed that he acted in self

- defense. “Self

- defense is an affirmative defense

. . . and in making such a plea, a ‘defendant implicitly admits the killing was intentional and assumes the burden of introducing evidence of justification or ex cuse that raises a reasonable doubt in the minds of the jurors.’” Bell v. Commonwealth , 66 Va. App. 479, 486 (2016) (quoting Commonwealth v. Cary , 271 Va. 87, 99 (2006)). “ Whether an accused proves circumstances sufficient to create a reasonable doubt th at he acted in self

- defense is a- 7

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question of fact.” Smith v. Commonwealth , 17 Va. App. 68, 71 (1993). Appellant argues that his actions fell under either justifiable or excusable homicide in self

- defense. “Justifiable homicide in self

- defense occurs where a person, without any fault on his part
in provoking or bringing on the difficulty, kills another under reasonable apprehension of death or great bodily harm to himself.” Bell , 66 Va. App. at 487 (quoting Bailey v. Commonwealth , 200 Va. 92, 96 (1958)). By contrast,

[e]xcusable homicide in self

- defense occurs where the accused, although in some fault in the first instance in provoking or bringing on the difficulty, when attacked retreats as far as possible, announces his desire f

or peace and kills his adversary from a reasonably apparent necessity to preserve his own life or save himself from great bodily harm. Id. (quoting Bailey , 200 Va. at 96). Thus, “[j] ustifiable self

- defense differs from excusable self

- defense because it does not necessitate that a defendant retreat and make known his desire for peace, two requirements of excusable self

- defense. ” Id. If either justifiable or excusable self

- defense are proven, the defendant must be found not guilty. Bailey , 200 Va. at 9 6. Under either justifiable or excusable self

- defense, a defendant must show that he reasonably feared death or serious bodily harm at the hands of his victim. Whether the danger is reasonably apparent is judged from the viewpoint of the defendant at th e time of the incident. The defendant must also show that he was in imminent danger of harm, that is, a showing of an overt act or other circumstance that affords an immediate threat to safety.
Hines v. Commonwealth , 292 Va. 674, 679 (2016). “An overt act is an act suggesting present danger which ‘ afford[s] a reasonable ground for believing there is a design

. . . to do some serious bodily harm, and imminent danger of carrying such design into immediate execution. ’ ” Jones v. Commonwealth , 71 Va. App. 70, 86 (2019) (quoting Commonwealth v. Sands , 262 Va. 724, 729 (2001)). “ ‘ [B]are fear that a person intends to inflict serious bodily injury on the- 8

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accused, however well

- grounded, ’ is insufficient without an overt act. ” Id. (alteration in original) (quoting Yarborough v. Commonwealth , 217 Va. 971, 975 (1977) ). Appellant argues that Jones’ killing occurred as justifiable homicide in self

- defense because appellant was not at fault in “bringing on the difficulty.” Appellant notes that the initial figh t was between Taylor and Broadnax, that Douglas was the first person to pull out a gun, and that appellant and his group “were the first to get into their car to try and leave.” Appellant alternatively argues that if the killing was not justified, it was excused. Appellant notes that he retreated to his vehicle after shaking Douglas’ hand “to make peace,” that he declined to fight Jones , and that he reasonably feared for his safety when Jones blocked his car from leaving while Douglas approached with his gun.
Here , taking the evidence in the light most favorable to the Commonwealth, appellant was in his car as Jones and Douglas approached. The surveillance video introduced at trial shows Jo nes walking in front of appellant’s car as it reversed out of its parking spot . C ontrary to appellant’s testimony , it does not show Jones stopping there to block the car from leaving. When the car finished reversing, its pathway was clear . W hile appella nt testified that he felt like a “sitting duck,” the group could have simply driven away.
Jones was unarmed throughout the entire incident , and a ccording to the Commonwealth’s witnesses, he was not threatening appellant or even yelling at him. W hile Dou glas was armed, throughout the encounter he had been attempting to calm Jones and end the tension between the
groups. Finally , Douglas did not have his gun out when the two men were approaching appellant’s vehicle. 2 Thus, a reasonable fact

- finder could conclude that appellant did not

2 While appellant testified that he saw Douglas’ gun in his hand when appellant shot, Douglas testified that he did not have his gun out at that point. Under the applicable standard of review, we must defer to the fact

- finder’s acceptance of Douglas’ version of these events.- 9

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reasonably fear death or great bodily harm and that he was not in imminent danger when he shot
Jones

. 3
C. Heat of Passion Appellant next argues that the evidence was insufficient to support his conviction because the Commonwealth did not prove that he acted maliciously. “Second

- degree murder . . . is defined as a malicious killing.” Woods v. Commonwealth , 66 Va. App. 123, 131 (2016). “ In order for an act to be done maliciously, the act must be done ‘ wilfully or purposefully. ’ ” Id. (quoting Essex v. Commonwealth , 228 Va. 273, 280 (1984)). “Malice is evidenced either when the accused acted with a sedate, deliberate mi nd, and formed design, or committed any purposeful and cruel act without any or without great provocation.” Id. (quoting Branch v. Commonwealth , 14 Va. App. 836, 841 (1992)). “ The trier of fact may infer malice from the deliberate use of a deadly weapon unless the evidence raises a reasonable doubt whether malice existed. ” Elliot v. Commonwealth , 30 Va. App. 430, 436 (1999)

. Appellant argues that the evidence showed that he acted under the heat of passion, which would prove voluntary manslaughter rather than second

- degree murder

. “ Voluntary manslaughter is the unlawful killing of another, ‘ committed in the course of a sudden quarrel, or mutual combat, or upon a sudden provocation, and without any previous grudge, and the killing is from the sudde n heat of passion growing solely out of the quarrel, or combat, or provocation. ’ ” Woods , 66 Va. App. at 131 (quoting Wilkins v. Commonwealth , 176 Va. 580, 583 (1940)). “Heat of passion refers to the furor brevis which renders a man deaf to the voice of r eason. ” Id.

3 “As we have often said, ‘the doctrine of judicial restraint dictates that we decide cases on the best and narrowest grounds available.’” Butcher v. Commonwealth , 298 Va. 392, 396 (2020) (quoting Commonwealth v. White , 293 Va. 411, 419 (2017) ). Here, we decline to decide whether appellant was at fault in “bringing on the difficulty.” Appellant has failed to show that the jury erred in finding that he did not reasonably fear death or great bodily harm, or that he was in imminent danger.- 10

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(quoting Rhodes v. Commonwealth , 41 Va. App. 195, 200 (2003)). “ [It] excludes malice when provocation reasonably produces fear [or anger] that causes one to act on impulse without conscious reflection.” Id. (alteration s in original) (quoting Rhodes , 41 Va. App. at 200 ). “Malice and heat of passion cannot coexist.” Id. (quoting Turner v. Commonwealth , 23 Va. App. 270, 275 (1996)). Appellant argues that he did not know Jones , did not want to fight him, and wanted only to leave the 7

- Eleven. He testified that he fired his gun because he was scared, not because he wanted to hurt or kill anyone. Appellant argues that his group attempted to drive away, but
Jones “immediately st ood in front of the car blocking them in.” Appellant concludes that he had “no time . . . to reflect” when Jones and Douglas “escalated the situation” by moving toward the car and that he “simply reacted to the sudden movements of [Jones] and [Douglas] ” w hen he fired his weapon. He argues that this was reasonable provocation sufficient to show heat of passion rather than malice. However, a reasonable fact

- finder could conclude that Jones’ and Douglas’ approach did

not reasonably produce such fear that ap pellant acted on impulse . The surveillance video shows that, while Jones was briefly in front of appellant’s car, he did not remain there but instead continued to approach the passenger side window. Appellant had a gun and was in an unobstructed vehicle that was already in the process of leaving; the Commonwealth’s evidence
was that neither Jones nor Douglas were holding weapons as they approached the car on foot. In the light most favorable to the Commonwealth, the fact

- finder was not plainly wrong in

c oncluding that appellant acted with malice rather than out of the heat of passion.
D. Use of a Firearm Appellant’s third assignment of error alleges that because the evidence was insufficient to
convict him of second

- degree murder, it was therefore insuf ficient to convict him of use of a- 11

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firearm in the commission of second

- degree murder. Because appellant’s argument here relies on the success of one of his first two assignments of error, and those assignments of error must fail, his third assignment of e rror must fail as well

. III. Post

- Trial Motions Appellant assigns error to the trial court’s denial of his request for a mistrial, alleging that Rule 3A:17 was violated by improper jury polling and a non

- unanimous verdict. He also assigns error to the trial court’s denial of his request to subpoena the two jurors that were not polled.
A. Jury Polling After the court clerk read the guilty verdict s out loud, the jury was collectively asked to confirm their verdicts. Appellant then timely requested the court to poll the jury; however, two of the jurors were inadvertently not asked to confirm their verdicts. At the time, appellant did

not object to this error. The jury then went through the sentencing phase and was individually polled again after they announced their sentence. This time, each juror co nfirmed the sentences. There was no suggestion of dissent from the jurors at either polling. On April 19, 2021

— fourteen months after the jury trial but before the final sentencing hearing

— appellant filed a motion to set aside the verdict based on the faul ty jury polling at the guilt phase . At the hearing on his motion, appellant acknowledged that he did not move for a mistrial at the time of the flawed polling because he did not realize that not all the jurors had been polled. 4
Given appellant ’s conce rns, the two unpolled jurors were summonsed to court ; however, they did not come. The court then held a hearing as to whether the jurors should be summonsed

4 A defendant must make a motion for mistrial relating to the jury “ before the jury retires or it ‘ is untimely and properly refused. ’ ” Maxwell v. Commonwealth , 287 Va. 258, 268 (2014) (quoting Cheng v. Commonwealth , 240 Va. 26, 39 (1990) )

. See also Kenner v. Comm onwealth , 299 Va. 414, 429

- 30 (2021) ( finding that the guilt phase and sentencing phases are distinct for purposes of polling jurors)

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again, and ultimately the court denied appellant’s motion to issue new summonses for the two juror s. The court also denied appellant’s motion for a mistrial , 5 finding that although the two jurors were not individually polled, the court was “satisfied” that the guilty verdicts were unanimous. The court explained that the trial transcript showed tha t after the clerk read the guilty verdicts, the jury was asked , “Is this your verdict?” and “So say you all?” and collectively responded “Yes” to each question. The transcript also showed that after these questions, the trial judge stated, “ It does appear that each of the jurors has acknowledged that each of those verdicts is his or her verdict. ” T he judge explained that this statement was based on “the court’s personal observation” of each juror as they were asked these questions. The court concluded:

“ There was no question and remains no question in the court ’ s mind that those were the unanimous verdicts of the jury and of each individual juror at the time

. ” The court found that appellant had “received substantial due process in this matte r” and “was found guilty by a unanimous jury , ” and it denied appellant’s motion based on these findings.
B. Rule 5A:18 and its Exceptions Appellant’s motion for mistrial was untimely under our contemporaneous objection rule, unless an exception is establ ished. Rule 5A:18 states in pertinent part: “ No ruling of the trial

court

. . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable this C ourt to attain the ends of justice. ” “ Rule 5A:18 applies to bar even constitutional claims. ” Ohree v. Commonwealth , 26 Va. App. 299, 308 (1998)

. “The main purpose of the contemporaneous

5 The record shows that appellant filed a written motion to set aside the verdict

. A ppellant later asked the judge to declare a mistrial. The court’s August 2021 order reflects that it denied both a

ppellant’s motion to set aside the verdict and his motion for a mistrial. B eca use appellant’s assignment of error addresses only the motion for a mistrial, we do not address the trial court’s ruling on the motion to set aside the verdict

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objection rule is to alert the trial judge to possible error so tha t the judge may consider the issue intelligently and take any corrective actions necessary to avoid unnecessary appeals, reversals and mistrials.” Ludwig v. Commonwealth , 52 Va. App. 1, 10 (2008). Here, appellant did not object to the flawed polling at the time it occurred

— his objection came a full fourteen months after the incident

. He therefore requests that we apply the good cause or ends of justice exceptions to Rule 5A:18

. “The good cause exception is applied when an appellant did not have the opportunity to object to an alleged error during the proceedings below. ” Flanagan v. Commonwealth , 58 Va. App. 681, 694 (2011)

. Here, appellant had the opportunity to object but simply failed to notice the error at the time; therefore, the good cause exception does not apply. “The ends of justice exception to Rule 5A:18 is narrow and is to be used sparingly.” Id. (quoting Copeland v. Commonwealth , 42 Va. App. 424, 442 (2004)). “ In order for the exception to apply, ‘ [t]he record must affi rmatively show that a miscarriage of justice has occurred, not that a miscarriage might have occurred.’” Id. at 695 (emphasis added) (quoting Akers v. Commonwealth , 31 Va. App. 521, 527 n.2 (2000)). Here, t he jury was collectively asked twice to confirm the guilty verdicts for each charge. After wards , the trial judge stated that each juror had acknowledged the validity of the announced verdicts. The judge based this finding on “ the court ’ s personal observation of each of the jurors in the jury bo x . . . . ” The trial judge made a factual finding that the jury was unanimous in finding appellant guilty and noted that there were no physical or audible indications that any of the jurors disagreed with the guilty verdicts. Additionally, the jury was indivi dually polled after their sentences were announced and they each agreed that those sentences were in fact their verdicts.- 14

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We note that this factual situation differs from that found in Webb v. Commonwealth , 64 Va. App. 371 (2015)

. In Webb , the jurors were individually polled after the jury ’s sentence was announced, and one juror responded that the sentence was not that juror’s verdict. Id. at 374. However, neither party nor the trial c ourt objected or responded in any way. Id. T his Court found that a m iscarriage of justice had occurred when the trial court accepted a non

- unanimous sentencing verdict, and thus applied the ends of justice exception of Rule 5A:18. Id. at 378

- 79. Unlike in Webb , here appellant has only shown that a miscarriage of justice m ight have occurred

. See Flanagan , 58 Va. App. at 695. I t is possible that, had the two jurors been individually polled, they might have responded that their verdicts were not guilty. However, there is no indication from the record that they would have r esponded in this way. Instead, the trial court found that there was no indication that any juror was not in agreement with the verdicts and concluded that the jury was unanimous in finding appellant guilty. The record supports the trial court’s conclusio n . On these facts, we cannot say that a miscarriage of justice occurred, and therefore the ends of justice exception is not available. 6 See Singleton v. Commonwealth , 14 Va. App. 947 , 950 (1992).

6 We note that, when considering an allegation of juror misconduct, “[t] he trial court properly may summon one or more jurors to testify under oath in open court and to answer relevant questions propounded by the court and counsel about what had transpired. ” Commercial Union Ins. Co. v. Moorefield , 231 Va. 260, 265 (1986)

. Where juror misconduct i s alleged, the failure to summons the jurors is subject to an abuse of discretion standard of review. Harris v. Commonwealth , 13 Va. App. 47, 51 (1991). While here the defense motion focused on a polling irregularity instead of juror misconduct, we find that the abuse of discretion standard is also appropriate in this setting. Here, the trial court declined to re - summons the jurors , not ing that the court had personally observed each of the jurors as they were collectively asked to confirm the unanimity o f the guilty verdicts. The court stated that there was “no question” that each juror had reached verdicts of guilty. Under these facts, even if the mistrial issue were preserved, the trial court’s decision not to re - summons the two jurors who were not in dividually polled was appropriate and not an abuse of discretion.- 15

- IV. Conclusion The jury was not plainly wrong or without evidence to support it in finding appellant guilty of second

- degree murder. When the evidence is viewed in the light most favorable to the Commonwealth, appellant was sitting in his car with his gun. While Jones and Douglas were approaching appellant’s window, Jones was unarmed and Douglas’ gun was in his pocket. A reasonable fact

- finder could conclude that appellant did not reasonably fear death or great bodily harm, that appellant was not in imminent dange r, an d therefore that appellant was not acting in self

- defense or under the heat of passion when he pulled the trigger. Thus, appellant’s
second

- degree murder conviction was not error.
Because the jury did not err in finding appellant guilty of second

- degree murder, it also did not err in finding him guilty of use of a firearm in the commission of second

- degree murder

. Finally, appellant has waived his arguments regarding jury polling under Rule 5A:18. Because there is no indication that any of the jurors d id not agree with the guilty verdicts, appellant has failed to show that a miscarriage of justice occurred . We therefore decline to apply the ends of justice exception to Rule 5A:18. Affirmed.