COA 366968 PEOPLE OF MI V HOLLY CHRISTINE ALEXANDER Opinion - Per Curiam - Unpublished 12/26/2025

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
UNPUBLISHED
December 26, 2025
12:25 PM
v No. 366968
Wayne Circuit Court
HOLLY CHRISTINE ALEXANDER, LC No. 2022-025589-FH
Defendant-Appellant.
Before: GARRETT, P.J., and RICK and MARIANI, JJ.
RICK, J. (concurring in part and dissenting in part).
I agree with the majority’s conclusion that the prosecutor erred by attempting to shift the
burden of proof regarding whether defendant possessed a taser and by failing to exercise due
diligence by failing to timely subpoena a res gestae witness whom he endorsed for trial. I likewise
agree that the trial court erred by failing to provide the requested missing-witness instruction.
Unlike the majority, however, I would find that the prosecutor’s failure to adhere to
MCR 2.506(C)(1) constituted structural error requiring reversal of defendant’s convictions.
Alternatively, I would conclude that the prosecutor’s and the trial court’s cumulative errors were
of such magnitude that they implicated defendant’s substantial rights and could not be considered
harmless. As a result, I would reverse and remand for a new trial.
The missing witness, who was a friend of defendant’s, was listed as one of the prosecutor’s
endorsed res gestae witnesses. In general, a prosecutor must exercise due diligence to produce
endorsed witnesses at trial. People v Eccles, 260 Mich App 379, 389; 677 NW2d 76 (2004). “A
prosecutor who fails to produce an endorsed witness may show that the witness could not be
produced despite the exercise of due diligence.” Id. Here, the prosecutor subpoenaed the missing
witness only one day before she was scheduled to appear, in violation of MCR 2.506(C)(1). The
rule states:
The signer of a subpoena must issue it for service on the witness sufficiently in
advance of the trial or hearing to give the witness reasonable notice of the date and
time the witness is to appear. Unless the court orders otherwise, the subpoena must

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be served at least 2 days before the appearance or 14 days before the appearance
when documents are requested. [MCR 2.506(C)(1).]
The trial court was aware that the prosecutor had only subpoenaed the missing witness the night
before she was scheduled to appear at trial. It made no mention of MCR 2.506(C)(1). Instead, the
court concluded that the prosecutor exercised due diligence in attempting to produce the witness
because he personally served the witness with a subpoena; spoke with her on the morning of trial
about her plan to appear; provided her with transportation via officers sent to her given address at
lunch; and reported that the officers looked around the neighborhood for her when they failed to
find her at her given address. Given the lack of proper notice as required under the court rules,
however, the witness had no obligation to appear at trial—and indeed, she did not appear. And
while we can only speculate as to nature of the witness’s testimony, it is at least possible that she
would have offered testimony favorable to defendant, particularly considering the fact that she was
one of defendant’s friends.
As the majority correctly concluded, the prosecutor’s violation of MCR 2.506(C)(1)
unequivocally constituted a failure to exercise due diligence. However, I disagree with the
majority’s conclusion that reversal was not required. At oral argument in this matter, defendant
maintained that a prosecutor cannot establish that they exercised due diligence in locating a
missing witness if they failed to timely subpoena that witness in accordance with
MCR 2.506(C)(1). I agree that part of the due-diligence analysis must include a determination of
whether the prosecutor adhered to MCR 2.506(C)(1). A review of published caselaw indicates
that this is a matter of first impression for this Court.
The majority reasons that defendant is not entitled to relief because she has not shown that
she was prejudiced by the prosecutor’s violation of MCR 2.506(C)(1). In doing so, the majority
essentially equates the prosecutor’s violation of MCR 2.506(C)(1) with any other failure to
exercise due diligence. But the violation of a court rule strikes me as patently different from, for
example, how many times the prosecutor attempted to contact a witness, see People v Brown, ___
Mich App ___, ___; ___ NW3d ___ (2024) (Docket No. 359376); slip op at 12, or even when the
prosecutor began attempting to contact the witness, see People v Cummings, 171 Mich App 577,
586; 430 NW2d 790 (1988). Unlike these rather nebulous criteria, a court rule violation is just
that—a rule violation. Such actions must have consequences; without them, the rule becomes
hardly more than a guideline. Here, by requiring defendant to prove that she was prejudiced by
the prosecutor’s actions, the majority has guaranteed that the prosecutor will suffer no negative
consequences for a blatant rule violation. In truth, it appears that defendant is the only party in
this matter who has experienced those negative consequences. I find it difficult to fathom that this
was our Supreme Court’s intention in promulgating MCR 2.506(C)(1).
After careful consideration of the issue, it is my belief that the only viable solution to the
challenge presented in this case is to treat violations of MCR 2.506(C)(1) as structural error
requiring automatic reversal. When a court rule establishes mandatory procedural requirements
with specific timeframes, compliance is not optional. The prosecutor’s complete lack of adherence
to the court rule affected the fundamental framework of the trial by denying defendant the
opportunity to present a complete defense. Beyond that, the majority has forced defendant into an
untenable position by requiring her to establish that she was prejudiced by the prosecutor’s rule
violation. Defendant cannot say one way or another what the missing witness’s testimony would

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have been because the prosecutor failed to produce the witness. As a result, defendant has no
meaningful way to establish how the absence of that testimony might have been prejudicial. This
circular reasoning—requiring proof of prejudice from evidence that was never presented—clearly
illustrates why these violations must be treated as structural error.
Further, it bears consideration that MCR 2.506(C)(10) exists precisely to ensure adequate
notice and prevent the type of last-minute scrambling that occurred in this matter. Treating
MCR 2.506(C)(1) violations as structural error would clearly signal to trial courts and prosecutors
that such violations are not to be tolerated. Courts would not be required to engage in speculative
harmless error analysis when faced with a clear court rule violation. Instead, they could focus on
whether the procedural requirement was met, providing a bright-line rule that promotes
consistency and fairness. Moreover, doing so would eliminate prosecutorial gamesmanship by
removing any incentive to delay witness service until the last moment. As it stands now, parties
face minimal consequences for violating MCR 2.506(C)(1), particularly if they can demonstrate
that other efforts were made to secure a witness’s attendance.
Even assuming arguendo that the prosecutor’s failure to exercise due diligence was
nonstructural error, I would nonetheless conclude that a new trial is warranted. The prosecutor’s
failure to produce the missing witness, combined with the jury’s inability to draw the appropriate
adverse inference via a missing-witness instruction, created a cumulative prejudicial effect and
denied defendant a fair trial. See People v LeBlanc, 465 Mich 575, 591; 640 NW2d 246 (2002)
(“[T]he cumulative effect of several errors can constitute sufficient prejudice to warrant reversal
where the prejudice of any one error would not.”). In my mind, the trial court’s refusal to instruct
the jury regarding the missing witness was the final nail in the coffin and assured that defendant
would be convicted. Accordingly, I would reverse and remand for a new trial.
/s/ Michelle M. Rick

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