Prosecutors say man was kicked to death

LAWRENCEVILLE - Following the murder of 22-year-old David Cruz last November, police had difficulty figuring out exactly how he was bludgeoned to death.

Police wondered if the perpetrator used a weapon to kill the Lawrenceville man. And if so, what kind?

According to an indictment released Thursday, the only weapon used was another man's feet.

A grand jury indicted another Lawrenceville man, Flavio Garay Pena, 23, on charges that he repeatedly kicked Cruz to death on Nov. 4.

Pena faces charges of murder, felony murder and aggravated assault. His arraignment is expected within a month.

At the time, police said Cruz's death was triggered by an early morning fight between the two men who knew each other "mildly."

Cruz's body was found in a ditch at 75 Arnold Road, located off U.S. Highway 29. A passerby called 911 to report the finding.

Police had responded to the area about 12 hours prior to 911 call.

About 3:30 a.m., a resident called 911 to report three drunk men fighting each other. The third man, 18-year-old Mario Palomo-Lopez, was charged with disorderly conduct but was cleared in the slaying.

Based on interviews, investigators said they had probable cause to charge Pena with murder.

Jail records show the arrest was Pena's first in Gwinnett County. He was employed as a construction worker, according to records.

Pena has been held since Nov. 4 at the Gwinnett County Jail without bond.