dissenting:
I respectfully dissent. As noted by the majority, “ ‘[W]e must consider whether the trial judge abused his discretion’ in declaring a mistrial on the ground of manifest necessity.” 337 Ill. App. 3d at 839, quoting Friason, 22 Ill. 2d at 566, 177 N.E.2d at 232. The majority also states a trial court abuses its discretion when it makes a decision that is “ ‘clearly against logic,’ ” and the question becomes whether “the trial court made an arbitrary decision, without using ‘conscientious judgment.’ ” 337 Ill. App. 3d at 839, quoting Bodine, 305 Ill. App. 3d at 435, 711 N.E.2d at 474. The majority apparently concludes the trial court abused its discretion in finding there was a manifest necessity to declare a mistrial. I disagree.
Following a trial court’s grant of a mistrial, the court of review must examine the facts of each case to properly determine the alleged double jeopardy violation. Street, 316 Ill. App. 3d at 211, 735 N.E.2d at 1057. The trial judge is in the best position to make an intelligent decision as to whether a mistrial should be declared. Illinois v. Somerville, 410 U.S. 458, 462, 35 L. Ed. 2d 425, 430, 93 S. Ct. 1066, 1069 (1973), quoting Gori v. United States, 367 U.S. 364, 368, 6 L. Ed. 2d 901, 904, 81 S. Ct. 1523, 1526 (1961). Further, the manifest necessity standard “do[es] not describe a standard that can be applied mechanically or without attention to the particular problem confronting the trial judge.” Washington, 434 U.S. at 506, 54 L. Ed. 2d at 728, 98 S. Ct. at 830-31. In Perez, the United States Supreme Court formulated the parameters for the trial court to decide whether to declare a mistrial by stating:
“We think, that in all cases of this nature, the law has invested [c]ourts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes.” Perez, 22 U.S. (9 Wheat.) at 580, 6 L. Ed. at 165.
In the case sub judice, the trial judge learned that one of the jurors had a medical emergency — her mother-in-law had fractured her leg and was hospitalized. The trial court, in exercising its discretion and caution, allowed further deliberation to afford the jury an opportunity to reach a verdict, all the while knowing the juror would soon need to depart for the hospital. The court’s exercise of discretion in determining the potential emotional distress to the affected juror and the ultimate impact on the jury as a whole must be given great deference. For example, if the court informed the juror of her mother-in-law’s injury, it may very well have been difficult for the juror to focus on the task at hand and it would certainly have been a natural tendency for the juror to desire completion of deliberations as quickly as possible. Further, it would be reasonable to assume the rest of her fellow jurors were aware of her predicament, possibly compelling the entire jury to rush to judgment, for or against defendant, to allow the juror to leave for the hospital. Such a situation presents “a significant risk that a verdict may result from pressures inherent in the situation rather than the considered judgment of all the jurors.” Washington, 434 U.S. at 509, 54 L. Ed. 2d at 730, 98 S. Ct. at 832. This brand of “hurry-up justice” is not in the best interest of defendant, the State, or the public.
Clearly the trial judge did not make an arbitrary decision, without using conscientious judgment. Defendant argues, and the majority concludes, that the injury to the juror’s mother-in-law was a routine fractured leg, and the juror’s presence at the family bedside “was not highly necessary.” 337 Ill. App. 3d at 843. These conclusions find no support in the record. The trial judge indicated he did not specifically know how serious the injury was, but he did find the injury sufficiently serious to allow the juror to go to the hospital. The record does not reveal the age or physical condition of the injured mother-in-law nor the closeness of the juror’s relationship to her mother-in-law. The trial judge was in the best position to make an intelligent decision on declaring a mistrial, well within the discretionary bounds afforded it under these unique circumstances. “A trial court’s failure to explicitly find manifest necessity or examine alternatives to a mistrial *** does not render the ruling constitutionally defective so long as the record provides adequate justification for the trial court’s ruling.” Camden v. Circuit Court of the Second Judicial Circuit, Crawford County, Illinois, 892 F.2d 610, 614 (7th Cir. 1989), citing Washington, 434 U.S. at 516-17, 54 L. Ed. 2d at 735, 98 S. Ct. at 836. Here, the trial court specifically found a medical emergency existed, and as a reviewing court, we are not in a position to conclude the trial court abused its discretion in finding the medical emergency constituted a manifest necessity to declare a mistrial.
As to defendant’s argument that the prosecutor made improper statements, I also do not find reversible error.
By failing to object at trial and to include the issue in his posttrial motion, defendant did not preserve this issue for review. People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130 (1988). However, defendant asserts review under the plain error doctrine (134 Ill. 2d R. 615(a)). The plain error doctrine may be invoked where (1) the evidence in the case is closely balanced, or (2) to leave the error uncorrected raises a substantial risk that the accused was denied a fair trial, and the preservation of the judicial process’s integrity necessitates remedying the error. People v. Shaw, 186 Ill. 2d 301, 326-27, 713 N.E.2d 1161, 1175 (1998).
Defendant objects to the prosecutor’s following statements:
“Now, they will have you believe that all of this was consensual on his part and I’ll deal with that in a moment. Her testimony, however, her demeanor and all credibility and believability in truth [sic] she was raped by the defendant.
Now, we have her testimony and it is, I think, to you very credible.
* * *
We have a young girl who is testifying very truthfully, honestly. If you look at how she reacted to that whole process, wasn’t made up, was not made up at all.” (Emphases added.)
Specifically, he asserts the prosecutor improperly bolstered the witness’s credibility with the above statements.
While a prosecutor personally vouching for a witness’s credibility or expressing a personal opinion is improper, a prosecutor can comment on a witness’s credibility and challenge the defendant’s credibility and defense theory when such remarks are based on facts in evidence or reasonable inferences drawn therefrom. People v. Pope, 284 Ill. App. 3d 695, 706, 672 N.E.2d 1321, 1328 (1996). This court has expressly rejected the notion that a prosecutor improperly bolsters a witness’s credibility if the jury has to infer the prosecutor is doing so from his comments. Thus, we held for a prosecutor’s closing argument to be improper, he must have explicitly stated that he was asserting his personal views. Pope, 284 Ill. App. 3d at 707, 672 N.E.2d at 1329.
Defendant argues the facts of this case are similar to People v. Lee, 229 Ill. App. 3d 254, 260, 593 N.E.2d 800, 804 (1992), where the First District held a prosecutor’s statement was improper and prejudicial. In Lee, 229 Ill. App. 3d at 260, 593 N.E.2d at 804, the prosecutor stated that a witness was “ ‘extremely honest in [his] humble opinion.’ ”
Here, the prosecutor does not explicitly state “this is my personal view” (see Pope, 284 Ill. App. 3d at 707, 672 N.E.2d at 1329), or that it is his opinion the witness was credible (see Lee, 229 Ill. App. 3d at 260, 593 N.E.2d at 804). Here, any bolstering of the witness’s credibility by the prosecutor was implied and thus does not constitute an error. While the prosecutor at one point said “I think,” the use of those words does not per se constitute error. See People v. Baker, 195 Ill. App. 3d 785, 788, 552 N.E.2d 421, 423 (1990), overruled on other grounds by People v. Love, 177 Ill. 2d 550, 564, 687 N.E.2d 32, 39 (1997).
Assuming arguendo that the prosecutor’s statements were improper, plain error did not occur because the evidence was not closely balanced and the statements did not create a substantial risk that defendant was denied a fair trial.
Here, the victim, defendant’s stepdaughter, testified that during the early morning of May 23, 2000, defendant put his hand over her mouth, pulled her into the bedroom, threw her on the bed, and pinned her down. As she struggled with him, he stuffed a pillowcase in her mouth. He then put his hand inside her boxer shorts and inserted his finger into her vagina. When she again attempted to get away, he threatened to punch her. After lifting up her shirt and licking her breasts, he pulled her by the hair out of the bedroom and out of the house.
At that point, defendant made her get into a vehicle she did not recognize and ordered her to drive him to his vehicle. Defendant directed her to a trailer where he forced her inside and then kicked her feet out from underneath her. She fell to the ground, and he ripped her clothes off her. Defendant then took his pants off and told her she was going to perform oral sex on him. He then forced his penis into her mouth, and she bit it. He then punched her in the face several times. He continued to attempt to force oral and vaginal sex upon her but, when he was unable to perform, he left the room and the victim put on her clothes.
When he returned, he told her things had gone too far and he would have to kill her. She begged for her life, and eventually he threw the car keys at her. At that point, she ran out of the trailer to the car and sped away. She came upon a police officer, pulled over, and told him what happened. A second officer arrived, and she again stated what happened.
Other testimony substantiated the victim’s account. Three members of the Vermilion County sheriff’s department all testified that they observed bruises above the victim’s left jaw line that looked like knuckle marks. Deputy sheriff Dennis Gardener testified that on May 23, 2000, he had stopped to assist a car that had broken down when he noticed a car approaching at a high rate of speed. The victim exited the car, screaming that she had been raped. According to Gardener she was hysterical, shaking uncontrollably, crying very hard, and talking almost incoherently. The second officer on the scene, David Harrold, also testified that when he arrived, the victim was still very upset, crying, and trembling.
Moreover, the victim testified that defendant had molested her on a prior occasion and had made other attempts. Her mother testified that in the past, her daughter had complained that defendant molested her and had come into her bedroom at night.
Defendant testified the victim was asking him questions about his activities and voluntarily came into the bedroom. When she sat down on the bed, they playfully wrestled and nothing sexual occurred. She then offered to give him a ride to pick up his car. They got in a car that belonged to his friend with the victim driving. Once they reached his car, she turned the car off and voluntarily entered the nearby residence with him. According to his testimony, she became friendly with him and she did not resist when he removed her clothing. He then took off his clothing. They both tried to engage in oral sex but he could not obtain an erection. Defendant stated she engaged in the activities willingly. According to defendant, the victim was upset when she left because she let things go too far.
Defendant’s story has serious credibility issues. The victim testified she had not liked defendant since he began molesting her in the sixth grade. Defendant himself agreed that his stepdaughter did not like him. After the victim left the residence, defendant climbed an observation tower and threatened to commit suicide. The first officer on the scene testified that he asked defendant why he was standing on the railing, and defendant responded that the officer knew what he had just done and that was the reason the officer was there.
Additionally, on May 24, 2000, defendant gave a statement to the police that had some inconsistencies with his trial testimony. Todd Damilano, an investigator for the Vermilion County sheriffs department, testified that defendant stated he had begun consuming alcohol and crack cocaine the evening of May 22, 2000, which continued to the morning of May 23, 2000. Defendant stated he was talking with the victim when “things got out of hand,” and he dragged the victim into the master bedroom. They wrestled, but no sexual contact occurred at home. He then had the victim drive him to his friend’s residence. When he and the victim arrived, “things really got out of hand.” He thought the victim wanted him, but he “could not get it up.” The victim asked to leave, and he let her go.
Accordingly, I would affirm the trial court’s judgment.