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Lawyers make opening statements in twin's trial

You can tell the identical twin Nickens brothers apart by whether or not they're wearing a lip ring, and the one without the lip ring is a murderer, a prosecutor told a Niagara County Court jury Tuesday.

Assistant District Attorney Brian D. Seaman said in his opening statement that Edward E. Nickens shot and killed Joshua Hayes, 23, at about 3 a.m. May 16 in front of Nickens' home on Michigan Avenue in Niagara Falls.

Seaman told the jury of eight men and four woman that Edward Nickens, 32, can be distinguished from his twin brother Raymond C. Nickens. He said Edward has a more muscular build, and the brothers have different tattoos.

But even their friends rely on one way to know who they're dealing with, Seaman said. "Raymond Nickens always wears a lip ring in the middle of his face. The defendant does not wear a lip ring."

Defense attorney Frank LoTempio III said prosecutors revealed the weakness of their case during jury selection.

They asked prospective jurors whether they could believe people with checkered histories or unsavory lifestyles who changed their stories, and also whether jurors could convict based on testimony alone in the absence of physical evidence.

"That's their case," LoTempio said.

Seaman did cite some physical evidence. The .40-caliber bullet removed from Hayes' brain at his autopsy matched a shell casing found on the lawn of Nickens' home, and they both matched a loaded gun found two hours after the shooting on Linwood Avenue, a block away.

There were no fingerprints on the gun, Seaman said, but there was DNA. He said testing showed that only one in 9,960 people could have a DNA profile matching that on the pistol.

Police did not decide which brother to charge with the murder until almost five months after it happened.

Seaman said Raymond Nickens was no longer living on Michigan Avenue at the time of the killing. He had moved to 16th Street to live with his girlfriend, and drove her blue Oldsmobile SUV, Seaman said.

Seaman said the eyewitnesses include Lawrence Smith, Keith Miles and Hayes' cousins Michael and Demetrius Hayes.

The night of the killing, they and Joshua had just left a bar in a black SUV. At 20th Street and LaSalle Avenue they saw a gray or silver Chevrolet Impala, customarily driven by Edward Nickens, Seaman said.

Seaman said they followed the car to Michigan Avenue, where Joshua exited the SUV, planning to finish a fight he'd had with the Nickens brothers less than 48 hours before.

The Impala driver also got out -- "the brother without the lip ring," Seaman said.

"No blows were exchanged. Instead, Joshua Hayes was shot in the face," Seaman said.

LoTempio told the jury that the witnesses said the shooter was wearing a dark T-shirt. He promised to show surveillance video from 33 minutes before the crime, showing Edward Nickens leaving a bar wearing a white T-shirt.

e-mail: tprohaska@buffnews.com

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