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Thursday, May 10, 1990 - Page updated at 12:00 AM

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Inquest: Officer Didn't Fire Fatal Shot -- Jury Rules In Slaying Of Gunman In Renton

RENTON - An inquest jury deliberated only 35 minutes yesterday before finding that a King County police officer had reason to believe he was in danger when he shot a Renton man during a holdup in February.

The Renton District Court jury also ruled 5-1 that Officer Timothy Lally did not fire the shot that killed David Zaback, 33. Both Lally and a store clerk fired at Zaback.

``It's unfortunate that it (the shooting) happened, but I can't complain about the outcome,'' said Lally, 49, a patrol officer in the Maple Valley precinct and an 18-year veteran of the force.

Zaback's family did not attend the inquest. The dead man's brother, Dan Zaback of Bellevue, said in a telephone interview, ``We accept the decision.''

He added that his brother had been under a psychiatrist's care.

On the afternoon of Feb. 3, Zaback, brandishing a .38-caliber semiautomatic pistol, entered H & J Leather & Firearms Ltd. in Renton, according to police.

``He took a shooting stance and said, `The gun is loaded. I have a round in the chamber, and I will shoot,' '' testified store owner Wendall Woodall, who was standing just inside the front door. ``He said it twice.''

Zaback then ordered those inside - including Lally, who was in uniform and had stopped by to have coffee with Woodall before going on duty, - to place their hands on the gun counter, Woodall said.

Danny Morris, a clerk at the store, said he stepped behind a file cabinet, pulled out his 10mm semiautomatic pistol and remained out of sight while Zaback held his gun on the customers.

Lally said he moved behind another file cabinet, raised his 9mm semiautomatic pistol and ordered Zaback to drop the gun.

Exactly what happened next is uncertain.

Morris said he fired first after Zaback turned his gun toward Lally. ``I was sure he was going to shoot Officer Lally, and I fired three times,'' Morris testified.

Lally said it was Zaback who fired first. ``He turned toward me and fired a shot. I fired back at him,'' Lally said. The officer's gun then misfired and he crouched while trying to fix it.

Zaback, who had fired three times, was shot three times in the chest and once in the arm. He died a few hours later at Harborview Medical Center. A bullet in Zaback's spine most likely was the one that killed him, said King County Medical Examiner Donald Reay. That bullet came from Morris' gun, said Frank Lee, a Washington State Crime Laboratory ballistics expert.

Inquest juries do not determine guilt or innocence, but the King County prosecutor will consider the jury's decision in deciding whether to file charges against Lally or Morris, said Deputy Prosecutor

Kyle Aiken.

-- Times staff reporter Anita Cal contributed to this report.

Copyright (c) 1990 Seattle Times Company, All Rights Reserved.

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