COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton, Coleman, 

 Willis, Elder, Bray, Bumgardner and 

 Senior Judge Baker*

Argued at Richmond, Virginia 

CHARLIE HACKNEY 

 OPINION BY 

v. Record No. 2165-96-3 JUDGE SAM W. COLEMAN III 

 SEPTEMBER 15, 1998 

COMMONWEALTH OF VIRGINIA 

UPON A REHEARING EN BANC 

FROM THE CIRCUIT COURT OF BUCHANAN COUNTY 

Keary R. Williams, Judge 

 David L. Epling for appellant. 

 Eugene Murphy, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Charlie Hackney was convicted in a jury trial of grand 

larceny and possession of a firearm by a convicted felon. He 

appealed the grand larceny conviction on the ground that the 

trial court erred by refusing to sever the charge of possession 

of a firearm by a felon from the grand larceny charge, as 

required by Rule 3A:10(c) and our holdings in Johnson v. 

Commonwealth, 20 Va. App. 49, 56, 455 S.E.2d 261, 265 (1995), and 

Long v. Commonwealth, 20 Va. App. 223, 226-27, 456 S.E.2d 138, 

139 (1995). A majority of a panel of this Court, utilizing a 

harmless error analysis as dictated by Kirk v. Commonwealth, 21 

 

 *Judge Baker participated in the hearing and decision of 

this case prior to the effective date of his retirement on July 

31, 1998 and thereafter by his designation as senior judge 

pursuant to Code § 17-116.01. 
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Va. App. 291, 464 S.E.2d 162 (1995), upheld the grand larceny and 

firearm convictions, holding that the defendant's election to 

testify rendered the prior conviction evidence admissible in the 

grand larceny prosecution and, thereby, rendered harmless the 

trial court's error in refusing to sever the charges. See

Hackney v. Commonwealth, 26 Va. App. 159, 493 S.E.2d 679 (1997). 

 We granted Hackney a rehearing en banc. See Code 

§ 17-116.02(D). Upon rehearing, we hold that, as a matter of 

policy, we will no longer apply a harmless error analysis to a 

trial court's clear error in refusing to sever a charge of 

possession of a firearm by a convicted felon from a related 

charge or charges as required by Rule 3A:10(c) and our holdings 

in Johnson and Long. Accordingly, we reverse the grand larceny 

conviction and remand that charge to the trial court for a new 

trial. 

BACKGROUND

 A grand jury indicted Hackney for grand larceny and 

possession of a firearm by a convicted felon. Prior to trial, 

Hackney filed a motion to sever the charge of possession of a 

firearm by a convicted felon from the other charge, alleging that 

proof that he had been previously convicted for larceny and 

burglary was irrelevant and highly prejudicial to the pending 

larceny charge. The trial judge and defense counsel had the 

following discussion: 

 THE COURT: [T]he Commonwealth is going to 

ask [the] question, "Have you ever been 

convicted of a felony or a misdemeanor 
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involving lying, cheating and stealing?" 

They're going to ask that . . . question at 

some point during the trial as well. 

 DEFENSE COUNSEL: If he takes the stand. 

 THE COURT: If he takes the stand. 

 DEFENSE COUNSEL: If he takes the stand. 

 THE COURT: And the Court certainly can't 

rule that out, and under the circumstances, 

where possession of these weapons is a part 

of the Commonwealth's case, certainly in the 

larceny charge and showing the subsequent 

possession, I think the Court would have to 

overrule Counsel's motion here. 

 During its case-in-chief, the Commonwealth introduced orders 

of conviction for three grand larceny and burglary offenses 

committed by Hackney in order to prove a required element of the 

firearm charge, namely, that Hackney was a convicted felon. 

Hackney testified in his defense to the larceny and firearm 

charges. On cross-examination, the prosecution elicited for 

impeachment purposes, testimony from him that he had been 

previously convicted of three felonies.1 The jury found Hackney 

 

 1For the purpose of impeaching a witness' credibility, the 

Commonwealth may prove that the witness, including a defendant 

who testifies, has previously been convicted of a felony, 

perjury, or a misdemeanor of moral turpitude, and may elicit the 

number of convictions. See Code § 19.2-269; Sadoski v. 

Commonwealth, 219 Va. 1069, 1070-71, 254 S.E.2d 100, 101 (1979). 

 The Commonwealth may not impeach a witness/defendant by proving 

the nature or details of a prior conviction, other than perjury. 

Id. Where a witness/defendant denies the fact of conviction, 

the Commonwealth may be permitted to further impeach the 

defendant by proving the nature and number of prior convictions 

to the extent necessary to prove that the accused testified 

falsely concerning the prior convictions. See Powell v. 

Commonwealth, 13 Va. App. 17, 21, 409 S.E.2d 622, 626-27 (1991). 

 In the present case, assuming that Hackney acknowledged the 

number of his prior felony convictions, as he did, the 

Commonwealth would not have been entitled to introduce the orders 
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guilty of grand larceny and possession of a firearm by a 

convicted felon. 

ANALYSIS

 Rule 3A:10(c) provides that when an accused is charged with 

multiple offenses, "[t]he court may direct that [the] accused be 

tried at one time for all offenses then pending against him, if 

justice does not require separate trials . . . ." (Emphasis 

added). It is well settled that justice requires separate trials 

under Rule 3A:10(c) "where evidence of one crime is not 

admissible in the trial of the others." Long v. Commonwealth, 20 

Va. App. 223, 226-27, 456 S.E.2d 138, 139 (1995); Johnson v. 

Commonwealth, 20 Va. App. 49, 56, 455 S.E.2d 261, 265 (1995). 

 Generally, evidence that a defendant has committed crimes 

other than the offense for which he is being tried is highly 

prejudicial and inadmissible. See Lewis v. Commonwealth, 225 Va. 

497, 502, 303 S.E.2d 890, 892-93 (1983) (noting that admission 

into evidence of felony conviction tends to adversely affect the 

defendant's presumption of innocence because it unfairly 

prejudices him before the jury). Such evidence confuses the 

issues before the jury and tends to prejudice the defendant in 

(..continued) 

of prior conviction, which included evidence of the nature of the 

prior offenses and sentences that he received. See Harmon v. 

Commonwealth, 212 Va. 442, 446, 185 S.E.2d 48, 51 (1971); cf.

Glover v. Commonwealth, 3 Va. App. 152, 161-62, 348 S.E.2d 434, 

440-41 (1986). Therefore, the nature of the evidence presented 

by the Commonwealth to prove an element of the firearm offense 

differs in quality and character and prejudicial effect from the 

fact of a prior conviction that could have been elicited by the 

Commonwealth for impeachment purposes. 
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the minds of the jury by showing his or her depravity and 

criminal propensity. Fleenor v. Commonwealth, 200 Va. 270, 275, 

105 S.E.2d 160, 163 (1958). This rule is not without exception. 

 Evidence of other crimes or convictions may be admitted for the 

purpose of, among other things, impeaching the credibility of a 

witness, including a criminal defendant, see Code §§ 19.2-268 

and -269; see, e.g., Banks v. Commonwealth, 16 Va. App. 959, 963, 

434 S.E.2d 681, 683 (1993), attacking a defendant's character on 

cross-examination, see, e.g., Weimer v. Commonwealth, 5 Va. App. 

47, 52-53, 360 S.E.2d 381, 383 (1987), or proving a relevant 

issue or element of the offense charged, such as motive, intent, 

common scheme or plan, knowledge or identity. See, e.g., 

Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 

805 (1970); Godwin v. Commonwealth, 6 Va. App. 118, 122-23, 367 

S.E.2d 520, 523 (1988); Sutphin v. Commonwealth, 1 Va. App. 241, 

245-46, 337 S.E.2d 897, 899 (1985). 

 In Johnson, we held that the trial court abused its 

discretion by refusing to sever the charge of possession of a 

firearm after having been convicted of a felony from charges 

related to possession of cocaine. 20 Va. App. at 51, 55-56, 455 

S.E.2d at 263, 265. We stated: 

 To prove the charge of possession of a 

firearm after being convicted of a felony, 

the Commonwealth was required to prove that 

Johnson was a convicted felon. Thus, with 

respect to that charge . . . evidence of 

Johnson's prior criminal record [was 

probative and admissible]. However, the 

evidence bore no relevance and had no 

probative value with respect to the charges 
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relating to possession of cocaine. With 

respect to those charges, it served merely 

the purpose of prejudicing Johnson in the 

eyes of the jury, by suggesting to [them] 

that he had a criminal propensity. 

Id. at 56, 455 S.E.2d at 265. Because the evidence of Johnson's 

prior convictions would have been prejudicial and inadmissible in 

a separate trial for possession of cocaine, we held that justice 

required severance of these charges in accordance with Rule 

3A:10(c). Id. In Long, we reaffirmed Johnson and held that 

justice required the trial court to sever the charge of 

possession of a firearm by a convicted felon from charges related 

to possession of heroin. 20 Va. App. at 226-27, 456 S.E.2d at 

139-40. 

 Similarly, in Kirk, we examined a trial court's failure to 

sever the charge of possession of a firearm by a convicted felon 

from charges of robbery and use of a firearm in the commission of 

a robbery. There, the defendant elected to testify, and, in an 

effort to ameliorate the prejudicial impact of the prior 

convictions evidence and impeachment evidence that might be 

elicited on cross-examination, he acknowledged on direct 

examination that he had five prior felony convictions. Kirk, 21 

Va. App. at 294, 464 S.E.2d at 163. The panel in Kirk

distinguished that case from Johnson and Long. The Court 

concluded: 

 Kirk testified, thus putting his 

character and credibility at issue. His 

prior felony convictions thereby became 

relevant and admissible for impeachment 

purposes. Furthermore, Kirk himself 
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testified, on direct examination, that he had 

been convicted of five prior felonies. 

Although the general rule, enunciated in 

Johnson and Long requires a severance when 

proof of one charge requires introduction of 

evidence that is irrelevant and prejudicial 

in the trial of another, the development of 

this case rendered harmless any error that 

may initially have occurred in denial of 

Kirk's motion to sever the charges of 

possession of a firearm while a convicted 

felon. 

Id. at 298, 464 S.E.2d at 165-66 (footnote omitted). 

 In the present case, a panel of this Court recognized that, 

as in Kirk, Hackney chose to testify in his own defense. Under 

principles of stare decisis, see Commonwealth v. Burns, 240 Va. 

171, 174-75, 395 S.E.2d 456, 457 (1990), a majority of the panel 

applied Kirk and held that evidence of Hackney's prior 

convictions was relevant and admissible to impeach Hackney's 

credibility, thereby rendering harmless the trial court's error 

in refusing to sever the charges. Upon rehearing en banc, we 

hold that, as a matter of policy, we will not condone a trial 

court's clear error in disregarding our decisions in Johnson and 

Long by refusing to sever the possession of a firearm by a felon 

charge predicated on the assumption that an accused will testify 

and render the error harmless. 

 The trial court's refusal to sever the charges was clearly 

erroneous. The holdings in Johnson and Long are clear: under 

Rule 3A:10(c), unless the Commonwealth and defendant agree to 

joinder, a trial court must sever a charge of possession of a 

firearm by a convicted felon from other charges that do not 
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require proof of a prior conviction. See Long, 20 Va. App. at 

226-27, 456 S.E.2d at 139-40; Johnson, 20 Va. App. at 56, 455 

S.E.2d at 265. Kirk reaffirms the underlying principle of those 

holdings. However, the Kirk decision was based on application of 

the harmless error doctrine upon appellate review. Harmless 

error is not a doctrine to be used by the trial court as a basis 

to disregard the holdings in Long and Johnson and to anticipate 

that the defendant might testify in his or her own behalf. In 

this case, the trial court declined to sever the charges after 

surmising that Hackney might testify and place his credibility 

and character at issue, thereby rendering harmless its erroneous 

decision not to sever. 

 The harmless error doctrine is applicable only upon 

appellate review or in the trial court upon consideration of a 

motion to set aside a verdict. When applicable, the harmless 

error doctrine enables an appellate court or a trial court when 

considering a motion to set aside a verdict to ignore the effect 

of an erroneous ruling when an error clearly has had no impact 

upon the verdict or sentence in a case. See Lavinder v. 

Commonwealth, 12 Va. App. 1003, 407 S.E.2d 910 (1991). The 

harmless error doctrine should not be used prospectively by a 

trial court as a basis to disregard an established rule of law. 

 Accordingly, we hold that the trial court erred when it 

refused to sever the charge of possession of a firearm by a 

convicted felon from the charge of grand larceny. Under the 
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circumstances of this case, because the trial court disregarded 

Johnson and Long, we hold that the trial court's clear error is 

not rendered harmless by the fact that Hackney testified in his 

own defense. We affirm the firearm charge, see Johnson, 20 Va. 

App. at 56-57, 455 S.E.2d at 265, and reverse the grand larceny 

conviction and remand the case for a new trial on the grand 

larceny charge, if the Commonwealth elects to proceed. 

 Affirmed in part,

reversed in part,

and remanded.