Judge declares mistrial in Richard Combs trial; No decision yet on retrial

Judge sends jury in Richard Combs case back to deliberate after jurors deadlocked
Combs in court on Monday (Source: Live 5 News)
Combs in court on Monday (Source: Live 5 News)
Defense attorney Fayssoux,"Where is this malice? Where is the evil man they're talking about?" (Source: WIS-TV)
Defense attorney Fayssoux,"Where is this malice? Where is the evil man they're talking about?" (Source: WIS-TV)
Combs (far right) looks intently as defense makes closing remarks. (Source: WIS-TV)
Combs (far right) looks intently as defense makes closing remarks. (Source: WIS-TV)

ORANGEBURG COUNTY, SC (WCSC) - Prosecutors say they have not made a decision yet if their offices will retry a former South Carolina police chief following a murder trial that ended in a mistrial early Tuesday morning.

First Circuit Solicitor David Pascoe said he has not decided if he will retry former Eutawville Police Chief Richard Combs for the death of Bernard Bailey.

Pascoe indicated he is weeks from making a decision.

The presiding judge in Combs' murder trial declared a mistrial in the case and dismissed jurors just after 2 a.m. Tuesday.

"The family of Bernard Bailey appreciates the services of the Orangeburg County jury during the recent Richard Combs trial for murder," read a statement by Bailey's family."Even though the jury was deadlocked and a mistrial was declared, we are not dissuaded from our unswerving pursuit of justice for Bernard Bailey. We thank those who have sincerely displayed the courage and continued dedication to ensure that justice is for all in this case."

Late Monday night, the judge sent the jury back to deliberate after jurors said they were deadlocked; jurors had written a note indicating they were they were deadlocked in the case following hours of deliberation. 

Judge Edgar Dickson then issued an Allen Charge which is an instruction given to a deadlocked jury to encourage it to continue to deliberate until it reaches a verdict. 

The jury faces three options of murder, voluntary manslaughter or not guilty. In order to prove murder, the state had to show that Combs killed Bailey with "malice or forethought." 

Combs told jurors he was scared for his life after he got stuck in the door of Bailey's truck as the vehicle was moving which led to the May 2, 2011 shooting. Authorities say Combs was trying to serve an obstruction of justice warrant on Bailey in connection with a traffic ticket he gave to Bailey's daughter. 

Combs' lawyers say he shot Bailey in self defense because he feared Bailey would run him over with his truck. 

Prosecutors say it's a case of murder because Bailey had stopped his truck and had his hands up. 

During deliberations, the jury asked to see video of a traffic stop that Combs made on Bailey's daughter; she was ticketed for a broken tail light. In addition, jurors requested to replay the emergency dispatch call when Bailey was shot, and asked for the definition of murder, manslaughter and malice.

Pascoe told the jury during closing arguments Monday morning that the system breaks down when you have rogue police officers gunning down unarmed men, and to use common sense.

According to Pascoe, Combs was looking for a confrontation when he shot and killed Bailey outside Eutawville Town Hall. Prosecutors say Combs wanted to arrest Bailey on an obstruction charge in connection with a traffic ticket issued to Bailey's daughter. 

A shooting then occurred in Bailey's pickup truck in which Bailey was shot tree times, prosecutors say. 

Pascoe told the jury that Bailey was slumped over when the third and final "kill shot" by Combs was fired.

"Make sure Combs drinks out of the same cup of justice as everyone else," said Pascoe during closing arguments on Monday. 

Prosecutors say Combs held on to the warrant for Bailey's arrest for two months, and said the chief then acted on it to make an example. 

Combs' defense attorneys said that Combs had a lawful duty to arrest Bailey, and Bailey had a duty to submit. 

Attorney Wally Fayssoux said his client was being dragged by Bailey's truck at the time of the shooting and Combs fired on Bailey until the "threat was gone" and immediately called 911. 

According to defense attorneys, prosecutors have ignored and was selective in gathering evidence against Combs. 

"When winning becomes more important than the truth...than that's what the state will do," said Fayssoux. "I implore you to use your courage...use your sense of what fair is."

The defense contends Combs acted in self-defense to avoid being run over. Pascoe said Combs was serving a trumped-up warrant.

Following closing arguments, the defense asked for a mistrial which was denied. 

Combs was placed on administrative leave at the time of the shooting, and was later terminated that year. 

In 2013, federal investigators decided not to file any charges against Combs in connection with the incident.

Copyright 2015 WCSC. All rights reserved. The Associated Press contributed to this report.