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Defense for Falls murder suspect ridicules prosecution eyewitnesses

The defense attorney for murder suspect Edward E. Nickens ridiculed the police and the prosecution's eyewitnesses, implying one of them might have been the killer, during his closing argument Tuesday.

"You don't have to figure out who did this. Reasonable doubt is the issue," defense attorney Frank LoTempio III told the Niagara County Court jury.

The prosecution will reply today before Judge Sara Sheldon Sperrazza charges the jury.

Nickens, 32, of Michigan Avenue, Niagara Falls, is charged with the May 16 shooting death of Joshua Hayes, 23, of Whitney Avenue, Niagara Falls. Hayes was shot once in the face in front of Nickens' house.

Two of Hayes' cousins, Demetrious and Michael Hayes, testified that the shooting occurred just after the victim had left a sport utility vehicle that had followed a car owned by Edward Nickens to his home.

Four of Hayes' cousins were in the SUV, including two, Lawrence Smith and Keith Miles, who were held for a night in jail as material witnesses but were never called to the stand.

Demetrious Hayes testified that Joshua wanted to finish a fight with Edward Nickens, who had cut his chin with a punch outside a Pine Avenue barber shop May 14, the third altercation between the two in a month.

Michael Hayes testified that the five cousins were planning a "beat-down" of Nickens and his identical twin brother Raymond C. Nickens. Police charged Edward with the slaying Oct. 7 after concluding Raymond wasn't present.

With Raymond Nickens looking on from the audience, LoTempio said the Hayes cousins "were going up to the Nickens house to either beat somebody up or kill them. They had the motive and the opportunity for violence."

During his hourlong summation, LoTempio said Niagara Falls police conducted "half an investigation" and failed to follow leads that might have led them away from Nickens.

"So where's Keith and Larry?" LoTempio asked the jury. "Wouldn't you like to hear their eyewitness testimony? They didn't want Larry and Keith to testify because they didn't want you to hear more lies."

He noted that the fatal gun was found on Linwood Avenue, a block south of the slaying scene and that Detective Thomas Ewing testified that Miles told him he ran between houses toward Linwood.

LoTempio also said Michael Hayes testified he was in the SUV, driven by Smith, as they fled the shooting scene, and it went down Linwood Avenue.

"Three people drove past where that gun was found," LoTempio said. "Who had the opportunity to plant that gun?"

He replayed the tape of Michael Hayes' 911 call, in which he said he didn't see what happened. Michael said in court he was scared.

"They weren't scared to go over there and give them an old-fashioned beat-down," LoTempio said. "I'll tell you what they were scared of. They were scared of going to jail."

He ripped the police for not investigating the four surviving cousins. "Didn't find it important to exclude them. Didn't find it important to take their fingerprints. Didn't find it important to take their DNA samples," LoTempio said.

Testing of the pistol showed a DNA profile that had a 9,960-to-1 chance of matching Edward or Raymond Nickens, since identical twins have identical DNA. The DNA was mixed with that of an unknown female.

Testimony showed that the .40-caliber pistol had been traced to Seneca Falls, S.C., where it was reported stolen in 2004.

e-mail: tprohaska@buffnews.com

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