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Witness tells how he knew which twin killed cousin

One of homicide victim Joshua Hayes' cousins offered an eyewitness account of his killing during testimony Wednesday in Niagara County Court, while two other cousins, also eyewitnesses, cooled their heels in jail on material witness warrants before being released at the end of the day.

Demetrious Hayes said he saw Edward E. Nickens, 32, fatally shoot Joshua Hayes at about 3 a.m. May 16 on Michigan Avenue in Niagara Falls.

But defense attorney Frank LoTempio III wanted to know why Hayes had identified Nickens' twin brother, Raymond C. Nickens, as the killer when presented with a police photo array.

"I did pick the wrong one, but there was only one picture [of a Nickens]. They're identical twins," Hayes replied in testimony in the murder trial in Niagara County Court.

Joshua Hayes, 23, of Whitney Avenue, was shot once in the face in front of Edward Nickens' home. Nearly five months after the killing, Edward Nickens was charged with murder, and police decided Raymond wasn't present.

Demetrious Hayes said he left the Whiskey Bar on Main Street in Niagara Falls at about 2 a.m. in a sport utility vehicle driven by his cousin, Lawrence Smith. Three other cousins -- Keith Miles and Joshua and Michael Hayes -- also were in the SUV. They were heading for "a Jamaican party" at a house at 20th Street and LaSalle Avenue.

"As we were coming down LaSalle Avenue, we met head-on the twins' car," Hayes told the jury. He said it was being driven by a Nickens brother who was not wearing a lip ring. Raymond customarily wore such a piercing, Hayes said, adding that he could tell the two apart by the lip ring and Edward Nickens' somewhat "better build."

The car, a Chevrolet Impala, headed for Michigan Avenue, and the SUV followed it because Joshua Hayes had been in a fight with the Nickens brothers May 14 in a Pine Avenue barbershop. A punch delivered by Edward Nickens purportedly left Joshua with stitches in his chin.

"Joshua wanted a fair fight with him," Demetrious Hayes said.

The cars parked on opposite sides of Michigan Avenue, a one-way street, and the driver of the Impala got out, then reached back inside for what appeared to be a plate of food, Hayes said.

He testified that a streetlight allowed him to see the man clearly: "It was the better-built one without the lip ring."

Everyone in the SUV except Smith got out, and Joshua Hayes exchanged some words with the man across the street.

"Joshua proceeded to run toward the Nickens twin," Demetrious Hayes said. "There was a gunshot, a flash and a sound." Hayes said the shooter fired from less than 2 feet away. He ran away between a couple of houses and heard the car leave the scene. He said he re-emerged to see the car at one end of the block and Smith's SUV at the other.

"I seen Joshua laying in the street," Hayes said. "We called the cops and waited for the cops to get there. He was bleeding from his head, twitching."

Deputy District Attorney Doreen M. Hoffmann said Smith and Miles didn't show up for court Tuesday despite a subpoena.


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