concurring and dissenting.
Prior to trial, Charlie Hackney filed a motion to sever the charge of possession of a firearm by a convicted felon from the other charges. Hackney alleged that proof he had been convicted of a felony was irrelevant and prejudicial to the burglary and larceny charges. Noting that the Commonwealth would be entitled to introduce evidence of Hackney’s prior convictions for impeachment purposes if Hackney testified, the trial judge stated that he “certainly can’t rule ... out” that Hackney would testify. Upon that premise, the trial judge denied Hackney’s motion.
I dissent to that part of the majority opinion holding harmless the trial judge’s error in refusing to sever the charge of possession of a firearm by a convicted felon from the charges of grand larceny and burglary.
I.
Applying Rule 3A: 10(b), this Court has firmly ruled “that where evidence of one crime is not admissible in the trial of the others, justice requires separate trials.” Johnson v. Commonwealth, 20 Va.App. 49, 56, 455 S.E.2d 261, 265 (1995). Thus, this Court has held that a trial judge errs in refusing to sever the trial of a charge of possession of a firearm by a felon from the trial of other charges. Id.; accord Long v. Commonwealth, 20 Va.App. 223, 226-27, 456 S.E.2d 138, 139 (1995).
The majority’s reliance on Kirk v. Commonwealth, 21 Va. App. 291, 464 S.E.2d 162 (1995), to reach a different result in this case is misplaced. In Kirk, this Court held that the trial judge did not err in refusing to sever the trials because, on the *172peculiar facts of that case, “justice [did not] require that the charges of possession of a firearm while a convicted felon be tried separately” from the robbery charges. 21 Va.App. at 296, 464 S.E.2d at 165. In discussing Long and Johnson, the Kirk opinion posited in dicta that if an error had occurred at Kirk’s trial it would have been harmless. That harmless error discussion was based in significant part on Kirk’s disclosure during his direct examination “that he had been convicted of five prior felonies.” Indeed, the Court stated that “[j]ustice does not require exclusion of evidence that is probative of the central issue on trial and that the accused himself chooses to interject.” Id. at 298, 464 S.E.2d at 165 (emphasis added).
Simply put, the harmless error rationale of Kirk has no bearing upon this case. Hackney did not interject his prior felony convictions when he testified on direct examination in his own defense. The Commonwealth was the party that initially interjected Hackney’s prior felony convictions. As a means of proving the predicate for the felony possession of a firearm, the Commonwealth proved in its case-in-chief Hackney’s record of felony convictions. Thus, even when Kirk is expansively interpreted beyond its actual holding, as the majority does in this case, Kirk is inapplicable to the circumstances of this case.
Obviously, when the Commonwealth proved Hackney’s prior felony convictions in its case-in-chief, Hackney did not choose to interject evidence of his prior convictions. The Commonwealth cannot now argue that when the Commonwealth proved Hackney’s prior convictions in its case-in-chief, the trial judge’s original error was rendered harmless. Moreover, even if the Commonwealth had not been the party to first interject that proof, the trial judge’s error would not be rendered harmless under the circumstances of this case. When Hackney chose to testify in his own defense, he was forced to admit his prior convictions on the Commonwealth’s cross-examination. However, Hackney’s prior convictions were elicited on cross-examination only after the trial judge refused to sever the cases for trial and after Hackney chose to testify in his own defense. Had the trial judge severed the *173trials, Hackney may have chosen not to testify during his trial on the burglary and grand larceny charges. Because he had the ability to prove his defense through the testimony of other witnesses, Hackney might have opted not to put his character and credibility at issue. In that circumstance, the prosecution could not have put Hackney’s character and credibility at issue by proving Hackney’s prior convictions.
II.
Although we must follow decisions by a panel of this Court when the rule of stare decisis requires us to do so, see Commonwealth v. Burns, 240 Va. 171, 174-75, 395 S.E.2d 456, 457 (1990), the dicta in Kirk is not binding. See Harmon v. Peery, 145 Va. 578, 583-84, 134 S.E. 701, 703 (1926). We are required, however, to follow the rulings of the Supreme Court of the United States protecting a criminal defendant’s constitutional right to take the witness stand and testify in his own defense.
“At this point in the development of our adversary system, it cannot be doubted that a defendant in a criminal case has the right to take the witness stand and to testify in his or her own defense.” Rock v. Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704, 2708, 97 L.Ed.2d 37 (1987). A defendant’s right to testify in his or her own defense has been deemed to be one of the “essentials] to due process of law in a fair adversary process.” Faretta v. California, 422 U.S. 806, 819 n. 15, 95 S.Ct. 2525, 2533 n. 15, 45 L.Ed.2d 562 (1975). This right stems from the Fourteenth Amendment’s guarantee of due process, which includes “a right to be heard and to offer testimony,” Rock, 483 U.S. at 51, 107 S.Ct. at 2709; the Sixth Amendment’s Compulsory Process Clause, “which grants a defendant the right to call “witnesses in his favor’ ... [and which logically includes] ... a right to testify himself, should he decide it is in his favor to do so,” id. at 52, 107 S.Ct. at 2709; and the Fifth Amendment’s “guarantee against compelled testimony,” to which the opportunity to testify is a “necessary corollary.” Id.
*174A trial judge may not impermissibly burden that privilege because “ ‘[t]he choice of whether to testify in one’s own defense ... is an exercise of the constitutional privilege.’ ” Rock, 483 U.S. at 53, 107 S.Ct. at 2710 (citations omitted). The decision whether a defendant “ ‘shall testify or not ... [is] submitted to the free and unrestricted choice of one accused of crime, and [is] in the very nature of things beyond the control or direction of the -presiding judge. Control [by the judge] ... is coercion, and coercion is denial of freedom of action.’ ” Brooks v. Tennessee, 406 U.S. 605, 608, 92 S.Ct. 1891, 1893, 32 L.Ed.2d 358 (1972) (citation omitted) (emphasis added).
In this case, the trial judge’s ruling that the cases should not be tried separately turned on the issue whether or not Hackney would choose to testify. However, that decision is one which is within the sole province of the defendant. “[T]he accused and his counsel may not be restricted in deciding whether ... the accused should take the stand.” Id. at 613, 92 S.Ct. at 1895. The trial judge cannot, by his ruling, control or direct this decision. See id. at 608, 92 S.Ct. at 1893.
The majority agrees that justice required severance of the firearm charge in this case. See Long, 20 Va.App. at 226, 456 S.E.2d at 139; Johnson, 20 Va.App. at 56, 455 S.E.2d at 265. However, the majority holds that because Hackney chose to testify, after the trial judge erroneously denied his motion to sever, the trial judge’s error is rendered harmless. Under the majority’s ruling, even when a trial judge makes a clear error in refusing to sever cases for trial because of the prejudicial effect of irrelevant evidence of prior convictions, this clear error is rendered harmless if the defendant takes the stand. Clearly, under that rule, the only way the defendant can preserve for appeal this prejudicial error is to not testify, even if, in the defendant’s judgment, his or her testimony is critical to the defense. To allow the trial judge to commit error by refusing to sever the cases for trial and, thereby, force the defendant to consider whether to forgo a critical defense at trial in order to protect his appeal of the error, “ ‘savors of judicial whim.’ ” Brooks, 406 U.S. at 608, 92 S.Ct. at 1893 (citation omitted). Such a rule imposes an unjustifiable bur*175den upon the defendant’s constitutional right “to testify in his own defense, or to refuse to do so,” Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971), and “to make a defense as we know it.” Faretta, 422 U.S. at 818, 95 S.Ct. at 2533.
For these reasons, I would reverse the convictions and remand for separate new trials. Therefore, I dissent.