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RENDERED: SEPTEMBER 24, 2026
NOT TO BE PUBLISHED
Supreme Court of Kentucky 2025-SC-0214-MR
CRUZ FRESCAS APPELLANT
V.
ON APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE LARRY ASHLOCK, JUDGE
NO. 24-CR-00179
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A Hardin Circuit Court jury convicted Appellant Cruz Carlos Frescas of murder. The jury recommended a sentence of 36 years, which the trial court imposed. Frescas now appeals to this Court as a matter of right. Ky. Const. § 110(2)(b). Following a careful review, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant Frescas befriended Derrick Franks in October 2023 while they were in rehab. In February 2024, Frescas began dating Peyton Roberts. On March 2, 2024, Frescas, Franks, and Roberts were out driving around. Roberts was drinking White Claws, and Franks got a fifth of vodka from a Walgreens. Eventually, the trio picked up Roberts' two children and decided to go to McNeely Lake Park in Louisville.
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The group then decided to drive back to Hardin County. On the way back, Frescas was driving, Franks was in the passenger seat, and Roberts was in the back seat with her two children. Frescas asserts that Franks was drunk and was being obnoxious and belligerent, and that Frescas became irritated with driving, the children, and the amount of noise in the car. According to Frescas, he eventually grabbed Franks' bottle of vodka and tossed it out of the window of the car. Frescas asserts that Franks then began cussing him out and demanding more alcohol. Frescas eventually stopped at a Minit-Mart for Franks to buy more vodka. Frescas then continued driving. According to Frescas, Franks called him a "bitch," after which Frescas threw Franks' second bottle of vodka out of the car window.
Frescas was armed with a gun, which he testified at trial was "always loaded" and had no external safety. The gun was between Frescas' seat and the center console. Frescas stated that Franks knew he had the gun with him. Frescas testified that after he threw Franks' second bottle of vodka out of the car, Franks lunged for the gun. Frescas grabbed the gun. In Frescas' telling, he then struck Franks in the head with the gun, and the gun accidentally went off. The bullet then tore through Franks' brain and lodged in his scalp. Frescas testified he had twice been pistol-whipped in the past, and in neither case did the gun go off.
Roberts also testified. She disputed that Frescas threw a bottle of vodka out of the car or that Franks got another bottle of vodka at the Minit-Mart. She also disputed Frescas' assertion that Franks had been drunk and belligerent.
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Roberts testified that on the drive back to Hardin County, her son became fussy because it was his bedtime. Roberts asserted that Franks turned around to soothe her son. Frescas then began screaming at Franks at the top of his lungs. Roberts testified she took Frescas' anger to be the result of him believing Franks was rubbing Roberts' leg, when in fact Franks was reaching into the back seat to soothe her son. Roberts testified Franks seemed to be clueless as to why Frescas was angry. According to Roberts, she then heard a click, saw Frescas' arm, and then saw white. Franks then fell back lifeless, after which Frescas began to panic. Roberts testified she never saw Franks lunge for the gun.
Frescas then pulled the car into a trailer park, pulled Franks' body out, left it in a field, and then got back into the car and drove away. He smashed Franks' cell phone and threw it out of the car. Frescas later hid his bloody clothes in Roberts' washing machine, tried to clean blood out of her car, and disposed of bloody cleaning supplies at a gas station. Eventually Frescas and Roberts drove to the home of Roberts' grandmother. Frescas wanted to take Roberts' car and for her to go with him, but she refused. Frescas then ran off on foot. Roberts then called the police, who interviewed her about what had happened.
Police began to search for Frescas. In the early hours of March 4, an officer with the Shelbyville Police Department reported that a wanted suspect had run from another officer. Law enforcement set up a perimeter. About an
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hour-and-a-half later, Shelbyville Police Department Officer Chesser found Frescas walking on the side of a busy highway, where he was apprehended. Frescas was ultimately charged with murder. The instructions also allowed the jury to find Frescas guilty of lesser charges of either second-degree manslaughter or reckless homicide. The instructions also included a self- protection defense. However, the jury found Frescas guilty of murder and recommended a sentence of 36 years, which the trial court imposed. Frescas now appeals as a matter of right.
ANALYSIS
Frescas raises three issues for our review: (1) whether the trial court erred in admitting body cam footage of Frescas' un-Mirandized responses to law enforcement inquiries when he was initially detained about why he had been running; (2) whether reversible error occurred when the prosecutor told the jury in closing argument that Frescas' behavior was not typical of someone involved in an accidental or self-defense shooting; and (3) whether reversal is warranted on grounds of cumulative error. We review each issue in turn, providing additional facts as necessary.
I. The Trial Court's Admission Of Frescas' Un-Mirandized Statements Was Harmless Error.
Frescas first argues the trial court erred in admitting body cam footage that included his un-Mirandized1 responses to law enforcement inquiries during his initial detention as to why he had been running. Frescas filed a
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motion in limine asserting that the statements should be excluded because they were made without Miranda warnings. The trial court reviewed the body cam footage and ruled that Miranda warnings were not required and the footage was therefore admissible. Frescas' argument is thus preserved. Ellis v. Commonwealth, 694 S.W.3d 294, 300 (Ky. 2024). Our review of a trial court's ruling regarding a motion to suppress presents mixed questions of law and fact. We therefore "review the trial court's findings of fact for clear error and the application of law de novo." Id.
At trial, the Commonwealth played the body cam footage for the jury. The six-minute video begins with Officer Chesser handcuffing Frescas while he is lying on his stomach on the ground by the side of the highway. Officer Chesser then asks Frescas why he was running. Frescas responds by requesting medical attention, and Officer Chesser then radios for EMS to come to the scene. Officer Chesser then frisks Frescas and asks whether he has anything on him.
A couple of minutes later, Officer Chesser asked Frescas what was hurting him. The following exchange then occurred:
Frescas: My legs from my run through the woods. Um, you
know how you asked me why I was running?
Officer Chesser: Yeah.
Frescas: I really, pulled up to my girlfriend's mom's house. And then she told me that y'all were looking for me, and all that. I don't, I don't know why.
Officer Chesser: You don't know why?
Frescas: No, because [interrupted]
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Officer Chesser: Then what'd you take off running for?
Frescas: Huh?
Officer Chesser: What'd you take off running for?
Frescas: Running?
Officer Chesser: Yeah.
Frescas: Like physically running?
Officer Chesser: Yes, you were physically running. Frescas: Just now I was just walking.
Officer Chesser: No, I'm talking about earlier. You've been running for two hours.
Frescas: It was longer than that.
Officer Chesser: Alright.
Frescas: [after being interrupted by a loud passing truck] Honestly, I was running because someone told me that y'all like, were like, y'all didn't even want to ask me questions you thought I was just guilty.
Officer Chesser: Alright, stay with him real quick, I'm gonna read you your rights okay?
Officer Chesser then walked to his car and then back to Frescas, who was telling another officer that his legs were injured. After more conversation that cannot be heard over the noise of passing traffic, Frescas asked what he was being charged with. Officer Chesser responded that Frescas was only being detained at that time. The footage then ends. Numerous officers were present, and Frescas remained handcuffed and on the ground during the entire interaction.
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Frescas now argues that because he was not provided Miranda warnings before Officer Chesser inquired as to why he was running, the trial court should have suppressed those statements. Under Miranda, an individual subjected to custodial interrogation by law enforcement must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Miranda, 384 U.S. at 478-79. The prosecution may not use any statements taken during custodial interrogation without such warnings being provided. Id. at 444.
The Commonwealth does not dispute that Frescas was in custody, but asserts Miranda warnings were not required because Frescas was not being interrogated. We disagree. A suspect is "interrogated" for purposes of Miranda when law enforcement uses "words or actions . . . (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect . . . focus[ing] primarily upon the perceptions of the suspect, rather than the intent of the police." Wells v. Commonwealth, 892 S.W.2d 299, 302 (Ky. 1995) (quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980)).
Here, Frescas had run from law enforcement, who then chased him for a an hour and a half while he ran. Notably, other than initially ordering Frescas to physically lie on the ground, Officer Chesser's very first statement to Frescas was an inquiry as to why he had been running. The inquiry was thus top of
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Officer Chesser's mind. After Frescas himself brought running up again a few minutes later, Officer Chesser again asked Frescas why he had been running. Law enforcement should know that when a suspect who has been running from law enforcement and has just been captured is asked why he was running, the suspect is reasonably likely to provide an incriminating response. Quite simply, the question seeks an explanation for the suspect's fleeing from law enforcement, which is highly likely to be incriminating, particularly given that "flight is always some evidence of a sense of guilt." Ordway v. Commonwealth, 391 S.W.3d 762, 776 n.5 (Ky. 2013) (emphasis added) (citation omitted). Indeed, here Frescas' response that he was running because law enforcement was looking for him and had already decided he was guilty was incriminating insofar as it was an admission of flight, which can be used as evidence of guilt. Rodriguez v. Commonwealth, 107 S.W.3d 215, 219 (Ky. 2003) ("[E]vidence of flight is admissible because it has a tendency to make the existence of the defendant's guilt more probable."). Thus, because Officer Chesser's inquiries as to why Frescas had been running from law enforcement were reasonably likely to result in an incriminating response, they constituted interrogation for purposes of Miranda.
We also do not agree with the Commonwealth's assertion that Officer Chesser's initial inquiry as to why Frescas was running constituted mere "chit chat." As noted above, Officer Chesser immediately posed the question to Frescas after chasing him for more than an hour. These circumstances are not
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suggestive of a mere exchange of commonplace pleasantries such that they might fairly be characterized as "chit chat."
Nor do we agree that Officer Chesser's follow-up questions about why Frescas had been running were questions "normally attendant to arrest."
Under the routine-booking exception to Miranda, law enforcement need not provide Miranda warnings before asking questions that are "normally attendant to arrest and custody" or that are "reasonably related to the police's administrative concerns." Jones v. Commonwealth, 641 S.W.3d 162, 169-70 (Ky. 2022) (citation omitted). The Commonwealth contends the questioning was permissible because Frescas had stated he injured his legs while running. However, the reason Frescas had been running was wholly unnecessary to obtaining medical care to address Frescas' leg injuries. In other words, the question was neither one "normally attendant to arrest" nor was it "reasonably related to the police's administrative concerns." Id. As such, the questioning also did not fall within the routine-booking exception. In sum, Officer Chesser's inquiries as to why Frescas had been running constituted interrogation, and those inquiries did not fall within the routine- booking exception to Miranda's requirements. Thus, we conclude that Miranda warnings were required because the statements were the product of custodial interrogation.
That said, we nonetheless agree with the Commonwealth that the admission of the statements was harmless error. We will not reverse for an
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error of constitutional magnitude where the error was "harmless beyond a reasonable doubt." Ellis, 694 S.W.3d at 303 (quotation omitted). The question is not simply whether there was sufficient evidence to support the conviction aside from the improper evidence. The question, rather, is whether the improper evidence was of a weight, was of a striking enough nature, or played a prominent enough role in the Commonwealth's case to raise a reasonable possibility that it contributed to the conviction.
Id.
Here, the statements made by Frescas in response to Officer Chesser's questioning were not of a striking enough nature or weight, nor did they play a sufficiently prominent role in the Commonwealth's case, to raise a reasonable possibility that they contributed to Frescas' conviction. The sum and substance of Frescas' statements to Officer Chesser were that he was running because he had been told law enforcement was looking for him and assumed he was guilty. Frescas did not say why he believed law enforcement would have been looking for him, nor what he believed law enforcement may have thought he was guilty of. Nor did Frescas otherwise say anything inculpatory regarding the killing of Franks.
Frescas contends the evidence was devastating to him because the prosecution noted in its closing that "the guilty flee and the righteous are bold."2However, this did not highlight any of Frescas' statements in responses to pre-Miranda questioning, but rather only noted the physical fact that
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Frescas had fled. Thus, it did not make use of Frescas' statements during Officer Chesser's questioning.
Moreover, we also find no reasonable possibility the statements might have contributed to Frescas' conviction given the other overwhelming evidence of his guilt. Frescas admitted that he shot Franks, though he claimed it was accidental, after becoming irritated over the course of the day. Roberts, who was present, further testified that she took Frescas' actions to be the result of anger at believing Franks was rubbing her leg. She also testified that Franks seemed bewildered by Frescas' conduct, rather than reacting in an angry or belligerent way. Roberts also detailed for the jury the numerous steps Frescas took after the fact in an effort to conceal his crime, including abandoning Franks' body in a field. Finally, the video itself constituted only six minutes of a three-day trial. Much of the video was at best difficult to hear and understand. Thus, because the statements were not inculpatory and were only a small portion of the trial, and because there was other overwhelming evidence of Frescas' guilt, admission of the un-Mirandized statement was harmless error beyond a reasonable doubt and does not warrant reversal.
II. The Prosecutor's Comment On Frescas' Flight Was Not Prosecutorial Misconduct.
Frescas next argues that reversal is warranted on grounds of prosecutorial misconduct. Frescas acknowledges this allegation of error is unpreserved and requests palpable error review pursuant to Rule of Criminal Procedure 10.26. In cases involving unpreserved allegations of prosecutorial misconduct, we reverse only if the "misconduct was flagrant and was such as
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to render the trial fundamentally unfair." Barrett v. Commonwealth, 677 S.W.3d 326, 332 (Ky. 2023) (citation omitted). In determining whether the misconduct was flagrant, we consider four factors:
(1) [W]hether the remarks tended to mislead the jury or to prejudice the accused; (2) whether they were isolated or extensive; (3) whether they were deliberately or accidentally placed before the jury; and (4) the strength of the evidence against the accused.
Id. at 334.
Frescas asserts that the prosecutor engaged in misconduct by making the following statement in closing argument:
If you killed somebody accidentally…or if you killed somebody in self-defense… "Officer… wait, wait. You've got to listen to me. I can explain. I know it looks bad. I can explain. I had no choice. It was an accident. I'm sorry." Something. Besides, "I don't know why. What am I being charged with?"
Relying on Ordway, Frescas contends this improperly suggested to the jury that Frescas' conduct was not what would be expected of a typical person who had acted accidentally or in self-defense. 391 S.W.3d. We disagree that such a suggestion was improper.
In Ordway, the defendant was charged with the murder of two fellow occupants of a car. Id. at 772. Witnesses testified that after the shootings, Ordway exited the vehicle and then brandished his gun and tried to force his way into other passing vehicles. Id. at 772-73. The defendant maintained, however, that he had acted in self-defense. Id. at 772. In response, the Commonwealth presented testimony by a police detective that attempts to commandeer vehicles in an effort to leave the scene of a crime is not typical
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behavior of someone who has acted in self-defense. Id. at 775. The detective opined that persons acting in self-defense instead typically lay down their weapon, stay at the scene, and attempt to call 911 for assistance. Id. We found the admission of that testimony to be reversible error. We held that the "testimony was incompetent because it permitted the police detective to authoritatively suggest how innocent persons behave after they lawfully engage in an act of self-defense, and to then, with some measure of certainty, exclude Appellant from that class of persons based on his conduct following the shooting." Id. at 775-76. We noted in particular that the detective's testimony impermissibly "urged the jury to depend upon his apparent expertise as a police officer and his perception and opinion about matters outside the realm of common knowledge." Id. at 776-77. We concluded the testimony was devastating to the appellant's claim of self-defense, and therefore reversible rather than harmless error. Id. at 777.
Notably, however, we also drew a stark contrast between impermissible expert testimony that a defendant's behavior was inconsistent with the typical behavior of a person acting in self-defense, and a prosecutor's permissible argument that the defendant's conduct, such as flight, was indicative of guilt:
Of course, a prosecutor may continue to argue reasonable inferences derived from a particular defendant's behavior, such as flight from the scene of a crime, is indicative of guilt. Those are simply appeals to the common sense and collective wisdom of the jury, based upon their own everyday
experiences.
Id. at 776. Such was the case here. The prosecutor simply sought to highlight Frescas' particular conduct following the crime—namely his flight—and asked
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the jury to draw the inference that the conduct was indicative of guilt. As we noted in Ordway, such conduct by a prosecutor is entirely permissible. Id.; see also id. at 776 n.5 ("As a general rule, proof of flight to elude capture or prevent discovery is admissible because 'flight is always some evidence of a sense of guilt.'") (citation omitted). Moreover, unlike the weighty expert testimony at issue in Ordway, the prosecutor's closing argument was "just that—an argument." Slaughter v. Commonwealth, 744 S.W.2d 407, 412 (Ky. 1987). We therefore do not find that the prosecutor's statement constitutes prosecutorial misconduct, much less conduct warranting reversal.
III. There Was No Cumulative Error Warranting Reversal.
Finally, Frescas argues his conviction should be reversed on grounds of cumulative error. Under the cumulative error doctrine, "multiple errors, although harmless individually, may be deemed reversible if their cumulative effect is to render the trial fundamentally unfair." Brown v. Commonwealth,
313 S.W.3d 577, 631 (Ky. 2010). Here, we have found only one harmless error, namely the trial court's admission of Frescas' un-Mirandized statements. Thus, because this case does not involve multiple errors, the cumulative error doctrine does not apply. Peacher v. Commonwealth, 391 S.W.3d 821, 852 (Ky. 2013) ("In short, there are no errors to cumulate, just one error which itself was harmless."). Thus, reversal is also not warranted under that doctrine.
CONCLUSION
For the foregoing reasons, we affirm the judgment and sentence of the Hardin Circuit Court.
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All sitting. Bisig, Conley, Goodwine, Keller, Nickell, and Thompson, JJ., concur. Lambert, C.J.; concurs in result only.
COUNSEL FOR APPELLANT:
Robert C. Yang
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky Christopher Henry
Assistant Attorney General