Denied.
Mr. Justice BRENNAN and Mr. Justice MARSHALL, dissenting:
Petitioner contends that his right of confrontation, guaranteed by the Sixth and Fourteenth Amendments, was violated because the transcript of the preliminary hearing testimony of a material prosecution witness was read at his trial and the prosecution, although it was aware that the witness would leave Florida prior to the trial, failed to use available procedures to assure the witness' ppresence at trial or to depose the witness before the trial began. See Barber v. Page, 390 U.S. 719, 88 S. Ct. 1318, 20 L. Ed. 2d 255 (1968). On the record in this case, we would grant certiorari and set the case for oral argument.
In any event, the imposition and carrying out the death penalty in this case constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Gregg v. Georgia, 428 U.S. 153, 227, 96 S. Ct. 2971, 49 L. Ed. 2d 904 (1976) (Brennan, J., dissenting); id., at 231, 96 S. Ct. 2973 (Marshall, J., dissenting). We would therefore grant certiorari and vacate the judgment in this case insofar as it leaves undisturbed the death sentence imposed.