We granted certiorari to decide whether the sentencing process followed in this capital case satisfied the requirements of the Due Process Clause of the Fourteenth Amendment. More narrowly, the question is whether, at the time of petitioner's sentencing hearing, he and his counsel had adequate notice that the judge might sentence him to death.
The unique circumstance that gives rise to concern about the adequacy of the notice in this case is the fact that, pursuant to court order, the prosecutor had formally advised the trial judge and the petitioner that the State would not recommend the death penalty. To place this circumstance in proper perspective, it is necessary to relate the procedural history of the case.
On or about June 21, 1983, Robert and Cheryl Bravence were killed at their campsite near Santiam Creek, Idaho. On December 1, 1983, the State filed an information charging petitioner with the crime of first-degree murder. The first count alleged that Robert Bravence had been beaten to death and the second count alleged that Cheryl Bravence had been killed in the same way. Identical charges were also filed against petitioner's older brother, Mark. At the arraignment, the trial judge advised petitioner that "the maximum punishment that you may receive if you are convicted on either of the two charges is imprisonment for life or death." App. 14.
After the arraignment, petitioner's appointed counsel entered into plea negotiations with the prosecutor. During these negotiations, petitioner agreed to take two lie-detector tests. Although the results of the tests were not entirely satisfactory, they convinced the prosecutor that petitioner's older brother Mark was primarily responsible for the crimes and was the actual killer of both victims. Id., at 193. The parties agreed on an indeterminate sentence with a 10-year minimum in exchange for a guilty plea, subject to a commitment from the trial judge that he would impose that sentence. In February 1984, the judge refused to make that commitment. In March, the case went to trial. The State proved that petitioner and his brother Mark decided to steal their victims' Volkswagen van. Petitioner walked into the Bravences' campsite armed with a shotgun and engaged them in conversation. When Cheryl left and went to a nearby creek, Mark entered the campsite, ordered Robert to kneel down, and struck him on the head with a nightstick. When Cheryl returned, Mark gave her the same order, and killed her in the same manner. See State v. Lankford, 113 Idaho 688, 691, 747 P.2d 710, 713 (1987).
Petitioner testified in support of a defense theory that he was only an accessory after the fact. The jury was instructed, however, that evidence that petitioner "was present, and that he aided and abetted in the commission of the crime of robbery" was sufficient to support a conviction for first-degree murder. App. 16. The trial judge refused to instruct the jury that a specific intent to kill was required. The jury found petitioner guilty on both counts.
At the prosecutor's request, the sentencing hearing was postponed until after the separate trial of petitioner's brother was concluded. The sentencing was first set for June 28, 1984, and later reset for October 1984. In the interim, pursuant to petitioner's request, on September 6, 1984, the trial court entered an order requiring the State to notify the court and the petitioner whether it would ask for the death penalty, and if so, to file a statement of the aggravating circumstances on which it intended to rely. A week later, the State filed this negative response:
"COMES NOW, Dennis L. Albers, in relation to the Court's Order of September 6, 1984, and makes the following response.
"In relation to the above named defendant, Bryan Stuart Lankford, the State through the Prosecuting Attorney will not be recommending the death penalty as to either count of first degree murder for which the defendant was earlier convicted." Id., at 26 (emphasis in original).
In the following month there was a flurry of activity. The trial court granted petitioner's pro se request for a new lawyer, denied that lawyer's motion for a new trial based on the alleged incompetence of trial counsel, denied a motion for a continuance of the sentencing hearing, and denied the new lawyer's request for a typewritten copy of the trial transcript. In none of these proceedings was there any mention of the possibility that petitioner might receive a death sentence.