Mr. Braae, “Cowboy Mike”, wore a cowboy hat and boots at bars where he was known to serenade women with his guitar. In July 2001, he met 44-year-old “LJ” at a dive bar in Olympia, WA. According to the bartender, LJ had been stood up earlier on a date and danced all evening with Cowboy Mike like they knew each other. The next day, LJ’s adult daughter, discovered her mother’s naked body under her bed with a pillowcase over her head. An autopsy indicated LJ was raped and strangled to death. DNA found on LJ’s body and fingerprints in her apartment linked Mr. Braae to the crime scene.
Mr. Braae was charged with First Degree Rape and First Degree Felony Murder. He was convicted, and on his first appeal, claimed his convictions constituted double jeopardy. He was unsuccessful. He tried again when an opportunity presented itself following vacation of one of his priors, thereby affecting his criminal history and overall offense score. This resulted in a resentencing at the trial level. Mr. Braae seized the opportunity to revisit his double jeopardy argument. The tenacity of his appellant defense team is truly commendable: Division II agreed that the “interests of justice” should be served by recognizing his double jeopardy argument; the rape count must merge, since a clarifying opinion, State v. Muhammad, came after Mr. Braae’s first appeal.
Washington Constitution Art. 1,§ 9 and U.S. Constitutional Amendment V indicates “No person shall be…twice put at jeopardy for the same offense.” Mr. Braae’s counsel argued that reconsideration of his double jeopardy claim was appropriate due to State v. Muhammad, 194 Wn. 2d 577 (2019). Justice Madsen’s analysis in that case was dispositive:
Because felony murder encompasses all of the elements of first degree rape, they constitute one crime. Murder is not felony murder without the underlying felony. Therefore, rape must merge into the more serious offense of felony murder so that Muhammed is not subject to multiple punishments for a single crime as proscribed by the double jeopardy clause of our federal and state constitutions. [Emphasis added]
As a result, Division II remanded Mr. Braae again to the trial court for further resentencing, instructing to vacate the lesser included offense of First Degree Rape. The trial court would have to sentence Mr. Braae with a different criminal history (given the egregious underlying facts and Mr. Braae’s original sentence of 539 months – 416 for the murder, 123 for the rape conviction – considerable long term imprisonment is likely).
Mr. Braae will get less time upon resentencing, although it is doubtful whether he will ever get out of prison. Which may not be a bad thing: there are reports of Mr. Braae being a suspect in the murders of two Oregon women. Two weeks after LJ’s murder, Idaho police arrested Mr. Braae following a high-speed chase where he fired gunshots at officers chasing him. He was driving his girlfriend’s vehicle. A girlfriend who has not been since June 2001. Police also arrested Mr. Braae for the attempted murder of another woman, “MM”, who was seen with Mr. Braae at another dive bar. MM identified Mr. Braae as the person who shot her in the head – less than a week after LJ’s body was found. MM’s condition so deteriorated by the time her case went to trial in 2006 that she could no longer testify. The jury deliberated but was unable to come to a verdict, and the case ended in a mistrial.
It appears the public will be safer if Mr. Braae remains in custody.