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
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
          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.  The jury found Hackney
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