ida’s contemporaneous objection rule4 and thereby had waived any claim of error in the instructions. This circuit, however, has held that procedural defaults may be excused, notwithstanding Wainwright, if the state’s own rules excuse such default. McKinney v. Estelle, 657 F.2d 740, 742 n.l (5th Cir. 1981); Clark v. Blackburn, 632 F.2d 531, 533 n.1 (5th Cir. 1980).
The Florida Supreme Court has excused such procedural default in similar circumstances. In Brown v. State, 206 So.2d 377 (Fla.1968), that court held that the failure by accused’s counsel to submit as required a request for particular jury instructions did not preclude appellate review of alleged error in the instructions given where the trial judge had already made clear that he would not charge the jury as counsel desired. Id. at 384. The rationale in Brown that “[a] lawyer is not required to pursue a completely useless course when the judge has announced in advance that it will be fruitless,” id. (citing Birge v. State, 92 So.2d 819 (Fla.1957)), is equally applicable here. At Henry’s trial, his counsel objected to the testimony of the arresting officer on the grounds that it was evidence of a nonstatutory aggravating factor. Record, Vol. VI at 1012-13. At that time, the trial judge overruled the objection and made clear his intention to allow such evidence to go to the jury. Id. In light of this ruling, any further objection to the jury instructions permitting consideration of nonstatutory aggravating factors would have been futile. As the district court noted, the objection to the arresting officer’s testimony was sufficient to put the trial judge on notice that the defense would object to any instructions allowing consideration of this evidence. For these reasons, we hold that the failure of Henry’s counsel to object to the jury instructions does not preclude federal habeas review of the alleged error in the instructions.
II.
We consider now whether the admission of evidence of nonstatutory aggravating factors and the jury instructions permitting consideration of any aggravating circumstances violate the eighth and fourteenth amendments. Appellant Wainwright argues that this court is bound by Florida Supreme Court cases interpreting the Florida capital sentencing statute in which that court has held that consideration of nonstatutory aggravating circumstances is harmless error where there are other statutory aggravating factors and no mitigating factors. See Brown v. State, 381 So.2d 690 (Fla.1980); Douglas v. State, 373 So.2d 895 (Fla.1979); Elledge v. State, 346 So.2d 998 (Fla.1977). Henry, on the other hand, argues that these cases regarding harmless and reversible error are not relevant to the constitutional issue before us— namely, whether a jury charge permitting consideration of nonstatutory aggravating factors violates the eighth and fourteenth amendments because it fails adequately to channel the jury’s discretion in determining whether to impose the death penalty. Agreeing with Henry, we conclude that such a jury instruction contravenes the constitutional directive in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and its progeny that jury discretion in capital sentencing be sufficiently guided so as to avoid the arbitrary and selective imposition of the death penalty.
As identified by the Supreme Court in Furman, the evil that must be avoided — the feature which rendered pre-Furman capital sentencing procedures the instrument of cruel and unusual punishment — is the irregular or selective application of the death penalty. Id. at 242, 92 S.Ct. at 2728 (Douglas, J., concurring). Consequently the eighth and fourteenth amendments require states to adopt and follow procedures that minimize the risk of arbitrary and discriminatory infliction of the death penalty and that provide a “meaningful basis for distin
4
Florida Rule of Criminal Procedure 3.390(d) provides: