Tuesday, April 13, 2010 | 4:21 p.m.
Brian Kerry O'Keefe
CARSON CITY – The Nevada Supreme Court has overturned the second-degree murder conviction of Brian K. O’Keefe, found guilty of killing his live-in girlfriend in Las Vegas in November 2008.
The court said District Judge Michael Villani gave an erroneous jury instruction that was not harmless. It said “it is not clear beyond a reasonable doubt that a rational juror would have found O’Keefe guilty of second-degree murder absent the error.”
O’Keefe and Victoria Whitmarsh had a tumultuous relationship. He was convicted in 2006 of domestic battery upon the testimony of Whitmarsh.
When he was released from prison, they got back together. They had both been drinking the night of the death when Whitmarsh was stabbed in the side.
O’Keefe said Whitmarsh came at him with a knife and they struggled. She fell down and hit the top of her head. He called for help from neighbors.
The Supreme Court said the district judge abused his discretion when it instructed the jury that second-degree murder includes involuntary killing and there was not enough evidence to support second-degree murder.
O’Keefe was sentenced to 10-25 years for second-degree murder and a consecutive term of 96 months to 240 months for a weapons enhancement.
The court on Tuesday ordered a new trial for O’Keefe.
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