Embezzlement by agent or trustee; MCL 750.174(5)(a); Jury instruction on a lesser included offense; Waiver; Discovery violation; MCR 6.201(J); Late disclosure; Prosecutorial error; Civic-duty argument; Ineffective assistance of counsel

The court held that defendant waived his jury-instruction claim, that the trial court’s remedy for a discovery violation was adequate, and that he failed to establish prosecutorial error or ineffective assistance. Defendant was convicted of embezzling $47,214.85 in state motor-pool costs by using vehicles for unauthorized purposes while employed by a state agency. On appeal, the court first held that his claim about a lesser included embezzlement instruction was waived because, after the trial court read the instructions, counsel said, “I’m satisfied, Judge,” and “a waiver extinguishes the right” to appellate relief. The court next held that delaying witness-R’s testimony was an adequate remedy for late disclosure of interview notes. It reasoned the notes were “not intentionally suppressed,” defendant already had notice of the interview contents through R’s preliminary exam testimony, and he failed to identify how the notes would have changed trial strategy. The record instead showed counsel “effectively cross-examined” R with the notes and used them to highlight memory and disclosure issues. The court also rejected the claim that the prosecutor made an improper civic-duty argument by saying taxpayers bore the loss. Because the prosecution had to prove the property belonged to the state, the comment was “highlighting an element of the charged offense” and also responded to the defense theory that the state suffered no real loss. Finally, the court held that counsel was not ineffective for failing to request a lesser offense instruction because that would have “undermined his own trial strategy” that defendant committed no embezzlement, and no reasonable view of the evidence reduced the amount below $20,000. Affirmed.