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VALPARAISO — A man charged with a fatal shooting 10 years ago in Portage was granted the right Friday to ask the state court of appeals to consider his request to toss out the testimony of two eyewitnesses.

The motion filed on behalf of Dominique Smith was granted by Porter Superior Court Judge Jeffrey Clymer, who last week rejected Smith's attempt to toss out the testimony in question based on claims that investigators were "unduly suggestive" when they presented a photo lineup to the witnesses last fall that led to the break in the decade-old case.

Porter County Deputy Prosecutor Rebecca Buitendorp told the court Friday she did not oppose Smith's request.

Defense attorney Bob Harper said, "Because the question of the admissibility of the lineup is the central issue in the case, we intend to immediately petition the Court of Appeals in Indianapolis to hear the appeal."

While initially suggesting attorneys for both sides continue preparing for the Nov. 12 trial date should the appellate court opt not to hear the appeal, Clymer later agreed to a request from the defense to continue the trial to allow more time for preparation. A new trial date was set for Feb. 17.

Smith, 30, is charged with murdering 27-year-old Jeremiah Higgins by shooting him on the night of May 15, 2009 at Canden Apartments in Portage.

Smith is pursuing what is known as an interlocutory appeal, which involves asking the Indiana Court of Appeals hear a contentious issue while the overall criminal case is still pending. The court does not have to accept the request.

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The motion says the issue to be appealed is whether the pretrial identifications of Smith by witnesses Erin and Joseph Hood were "impermissibly suggestive" and if so, whether that "tainted subsequent in-court identifications."

"The identifications are critical evidence in the state's case," reads the motion. "Indeed, they are the primary reason that, after nine years, Mr. Smith was arrested in this cold case."

The motion says Clymer determined the photo lineup was not "impermissibly suggestive despite the marked difference between the complexion of the defendant and those in the 'filler' photographs. Mr. Smith respectfully disagrees with the court's conclusion and believes that it is contrary to Indiana case law."

Portage police Detective Mike Vaughan presented the six photographs to each witness separately and did not indicate if Smith was among the photographs, Clymer said in his initial ruling. He also told the witnesses "it was OK if they did not see the defendant's picture."

The Hoods also did not hesitate during last month's court hearing to point out Smith as the man they saw shoot and kill Higgins.

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Porter/LaPorte County Courts and Social Justice Reporter

Bob is a 23-year veteran of The Times. He covers county government and courts in Porter County, federal courts, police news and regional issues. He also created the Vegan in the Region blog, is an Indiana University grad and lifelong region resident.