victim impact testimony. We conclude that, consistent with our holding that the admission of victim impact evidence did not violate the Ex Post Facto Clause, it also did not constitute a due process violation. “[A]n unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law----” Bouie, 378 U.S. at 353, 84 S.Ct. 1697. Gentry’s due process claim fails for the same reasons as his ex post facto claim — the change in evidentiary rules did not alter the elements of the crime or the requirements for conviction. Id. at 353-54, 84 S.Ct. 1697. Admitting victim impact statements did not change the elements of Gentry’s crime. Gentry had sufficient notice for due process purposes that Ct. 1197, 51 L.Ed.2d 393 (1977) (plurality) (<HOLDING>); Coleman v. McCormick, 874 F.2d 1280, 1288
recognizing that even a nonunanimous recommendation of death by the jury proved that the jury including the jurors who voted against the recommendation of death had unanimously found the existence of a proffered aggravating circumstance even though the circumstance was not included within the definition of the particular capitalmurder offense charged in the indictment because the trial court had specifically instructed the jury that it could not proceed to a vote on whether to impose the death penalty unless it had already unanimously agreed that an aggravating circumstance existed recognizing that before the case was submitted to the jury the trial court charged the jury that if it were unable to reach a unanimous recommendation the court would impose a sentence of life imprisonment without the possibility of parole holding that under the alabama death penalty statute because the judge did not consider the jurys recommendation the statute which forced the jury to sentence the defendant to death whenever aggravating circumstances existed was not unconstitutional holding that it was a due process violation where the judge in issuing the death sentence against the recommendation of the jury considered a confidential presentencing report that was not considered by the jury holding that due process was violated where a death sentence was imposed based on information in a presentence report and the defendant was not given an opportunity to deny or explain the information