James Dupree Henry, Cross-Appellant v. Louie L. Wainwright, Secretary, Department of Corrections, Cross-Appellee

JAMES C. HILL, Circuit Judge:

This appeal requires that we decide whether it is error as a matter of constitutional law to allow a jury in a capital case to consider nonstatutory aggravating factors in deciding whether the death penalty should be imposed. We hold that it is and affirm the district court’s grant of a writ of habeas corpus.

Appellee James Dupree Henry was convicted of first degree murder on June 26, 1974 in the Circuit Court for Orange County, Florida. At the sentencing hearing, the state called as a witness the arresting officer who, over defense objection, testified that Henry…