People v. Evans

Per Curiam.

Defendant was convicted by a jury of delivery of a controlled substance, heroin, in violation of MCL 335.341; MSA 18.1070(41), sentenced to a term of 6 years and 6 months to 20 years, and appeals by right.

Initially, the claim is asserted that evidence of a defendant’s prior convictions should be excluded in all circumstances. We reject this contention for the reason that there is no supporting authority in the State of Michigan.

It is next urged that the trial court erred in taking under advisement defendant’s motion to exclude evidence of his prior convictions until after defendant testified. Specifically, the trial court stated:

"You can use it if, at the end of his testimony, I deem it necessary, or, in other words, if it has probative value relating to veracity. In other words, if I think, after his testimony, there is a reason to go into it because he *57may not be telling the truth and the jury should consider that, at that time, we will approach the bench and go into it at that time.”

The trial court’s awareness of the need to balance the probative value of the testimony against the prejudice to the defendant was of little avail to the defendant in this instance because, by taking the request to exclude under advisement, the trial court effectively failed to exercise its discretion. See People v McCartney, 60 Mich App 620, 624; 231 NW2d 472 (1975), and People v Jones, 92 Mich App 100; 284 NW2d 501 (1979).

The similarity of the crimes, the failure of the defendant to take the stand, and the importance of the defendant’s testimony to his defense coupled with the elicitation through another witness of defendant’s prior record, including prior dealings and arrests, persuades us that this error cannot be termed harmless.

Accordingly, we reverse and remand for a new trial.