ore of 77. She described this score as "borderline." Boyer also testified that the circumstances of the murders were consistent with rage or "extreme emotional state," as opposed to a calculated or planned killing, and that Stephens's behavior in the hours following the murder indicated remorse. Stephens's mother testified that Stephens loved his children, including Nicholas, that he had been a caring and responsible father, and that he "could not have been in his 'right mind'" when he committed the murders.Despite evidence of the heinous, atrocious, and cruel nature of the offense, and despite Stephens's 1992 attack on Annie, two jurors voted for a sentence of life imprisonment without parole. The jury might have voted for the death penalty if it had been instructed on only the two valid statutory aggravating circumstances. However, we are unable to conclude, beyond a reasonable doubt, that it would have done so.A recommendation of death must be based on a vote of at least 10 jurors. § 13A-5-46(f), Ala. Code 1975. In this case, a change in only one juror's vote would have prevented the jury from recommending a death sentence. At that point, [*17] one of several things might have happened - the trial court might have instructed the jury to deliberate further, resulting in a vote for either life imprisonment or death, or the court might have declared a mistrial and empaneled a new sentencing jury. § 13A-5-46(g), Ala. Code 1975. This uncertainty requires us to reverse Stephens's sentence and remand the case for resentencing.THE SMALL PRINTSUBSCRIBING & ARCHIVES: Capital Defense Weekly is normally written by Karl Keys. CDW is published forty (40) times (or so) a year. Archives accessible athttp://capitaldefenseweekly.com/index.html.