
    STATE of Louisiana v. Roger David GAY and Brian Ray Crain.
    No. 94-KK-3134.
    Supreme Court of Louisiana.
    Feb. 9, 1995.
    Reconsideration Granted in Part; Denied in Part March 17, 1995.
   In re Crain, Brian Ray; — Defendant(s); applying for supervisory and/or remedial writs; to the Court of Appeal, First Circuit, No. RW94 2078; Parish of St. Tammany, 22nd Judicial District Court, Div. “E”, No. 94CRI57532.

Granted in part. The facts relied on by the court of appeal do not establish a prima facie ease of conspiracy between relator and Roa, the unavailable out-of-court declarant whose statements the prosecution seeks to introduce against relator at trial under the co-conspirator exception to the hearsay rule in La.C.Ev. art. 801D(3)(b). For that exception to apply, the state must show that the declarant and the accused were both members of the conspiracy. Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987); United States v. Johnson, 4 F.3d 904 (10th Cir.1993), cert. denied — U.S. —, 114 S.Ct. 1081, 127 L.Ed.2d 398 (1994). The judgment of the court of appeal on this co-conspirator issue is set aside, and the judgment of the trial court on that issue is reinstated.

WATSON, J., not on panel.  