Did a South Berkeley landlord try to kill his tenant last summer, or did a “distasteful” joke go terribly wrong?
Alameda County Superior Court Judge Jason Chin on Wednesday sent Herman Levi Little to trial on a charge that he attempted to murder his tenant in June 2018.
Timothy Loving, Little’s former tenant, took the stand at Wednesday’s preliminary hearing, where the judge decides whether there’s enough evidence for a case to proceed to trial. Loving recounted the shock of getting shot by his landlord in their shared backyard one morning without warning.
“I still have a whole bullet in my chest,” said Loving, who’s since moved to Oakland.
Little’s defense lawyer Seth Morris said it seemed like the shooting was an accident, arguing that Little had never displayed any ill will toward Loving previously. He tried to undermine Loving’s credibility, bringing up the tenant’s criminal record.
Loving moved into a basement unit at 2116 Essex St., east of Shattuck Avenue, in 2013. Little, now 76, occupied the top floor of the property, and other tenants rented the remaining three units.
Loving, who was 39 at the time of the shooting, described his relationship with his landlord as “cordial.” They would say hello when they crossed paths every month or so, but didn’t interact much otherwise. There were one or two tense incidents around unpaid rent, including when Little changed the locks on Loving’s apartment in 2015. Loving said he was unaware at the time that his direct deposits were not making their way into Little’s bank account, and later resolved the issue.
By June 13, 2018, Loving was again eight months behind on rent, because of health issues his landlord was aware of, he said. Little never confronted him about the payments, he said.
That morning, Loving returned home from grocery shopping a little after 11 a.m. to find a large piece of plywood blocking the main entrance to the backyard and Loving’s rear unit. When he walked around the other side of the building, he found his landlord sitting at a table in the yard, reading. The two chatted briefly, about Loving’s job search, both men’s health, and some bikes that other tenants had left in the yard.
Loving then went into his apartment and began putting the groceries away, he said. When he came back outside to take out some trash, Little got up from his seat and faced him. The landlord, holding some kind of object, extended his arm at Loving and said, “Pow,” the tenant recalled.
“I didn’t really see anything in his hand at first,” Loving said at the hearing. “I thought he was trying to be funny or something.” He’d heard his landlord had a “crazy sense of humor.”
Loving said he heard two “clicks” and saw the landlord bring the object he was holding back toward his torso, holding it in one hand and adjusting part of it with the other.
Loving heard a gunshot sound, and looked down, seeing a wound on his chest. He brought his hand to the wound, and then felt that hand get shot too.
“It hurt like crazy,” he said. “I stepped back into the unit and slammed the door, yelling, ‘Why would you shoot me?'”
Loving said Little responded, “It was an accident.”
Loving said he heard yet another shot and started to call the police, then heard a “jiggling noise.” He ran to a different door leading out from his unit, and looked out through the peephole, seeing his landlord holding a gun and attempting to open the door Loving had just come from, he said. The tenant said the landlord came into the apartment, engaging in a brief “standoff” with Loving then “chasing him” through the unit.
Loving ran outside again, pushing through the plywood board blocking the exit.
“I ran into the middle of the street, holding my hand over my chest, yelling, ‘My landlord shot me. Someone call the police.'” On the day of the incident, witnesses told Berkeleyside they heard the man’s cries.
Loving ran to the Cannabis Buyers Club of Berkeley, the dispensary down the block, and collapsed in the lot.
“I ran to the cannabis club parking lot because I knew if I did that, the police would be there rather quickly,” Loving said in court. A patron helped him, until police and paramedics got there, taking him to Highland Hospital, where he underwent multiple surgeries and stayed for over a week.
During the hearing, Loving referred to the object Little was allegedly adjusting on his gun as a silencer. Several neighbors did not hear the gunshots that June day (although Loving in court said that they were loud).
Police later said they found multiple guns and a homemade silencer built out of PVC pipe at Little’s property, where they arrested the landlord without incident shortly after the shooting.
Loving said he continued living in the Essex Street apartment until January.
Defense: This “makes no sense”
Morris, Little’s attorney, did not dispute the fact that his client shot the tenant, but he argued that there was no evidence that Little wanted, let alone planned, to harm Loving.
The whole case is “bizarre, strange and makes no sense,” Morris told the judge Wednesday, calling for the charges to be dropped until the district attorney could present more evidence. An attempted murder would be a confusing twist in a landlord-tenant relationship that had been fairly amicable for years, he argued.
Loving agreed with Morris that the violence seemed “out of character.” Questioned by Morris, he repeatedly confirmed that Little had never threatened him or yelled at him in the past, and instead had acted “sympathetic” about the tenant’s health issues. The landlord didn’t pester him to pay the eight months of back rent, even during their casual chat just moments before the shooting.
Morris noted that Little allegedly extended his arm and said “Pow” before shooting Loving.
“I don’t think that’s what you say when you’re trying to kill someone,” Morris said in his closing argument. “That sounds more like a joke — maybe a distasteful one.” And he didn’t extend his arm again when he actually shot Loving, making it seem like he didn’t mean to fire the weapon, he said.
The attorney argued that Little’s hearing problems could have prevented him from even realizing the gun had been shot. Little used an assisted listening device during the preliminary hearing, and the court had to go on break early on in the session when he still had trouble understanding what was being said. He ended up sitting next to a court reporter who typed a transcript on a screen exclusively for the defendant, so he could read along throughout the hearing.
Morris also challenged the accusation that Little had chased Loving through the apartment.
“You’ve had five years of interactions with him — have you ever seen him run?” Morris asked, incredulously.
Little, whose daughter attended the hearing, came to court with a cane and talked about his hip problems during breaks.
As for the boarded-up exit, Morris suggested the barrier was installed to prevent homeless people from sleeping in the pathway — an issue a maintenance worker had discussed with Loving previously.
Deputy DA Sean Flynn had a different take later in the hearing: “The plywood was blocking the obvious exit to the front of the house,” he said. “I don’t think there’s any question what his intent was.”
Morris also raised questions about Loving’s background, and what he called the tenant’s “strained relationship with the truth.”
Loving admitted that he had been arrested for using fraudulent credit cards in 2001 (according to court records, he was sentenced to two days in jail and three years of probation), and had been the subject of a domestic violence restraining order in 2006, which he was charged with violating (he was found not guilty). There was also a warrant out for Loving’s arrest when first signed a lease with Little, said Morris, but Loving said he hadn’t known that at the time.
On that line of questioning, the judge made a rare interjection, asking Morris, “Just curious, what’s the relevance?”
“Credibility,” the lawyer replied.
According to court records, Little was also charged with a crime in the past, getting sentenced to three years’ probation in 2000 for causing corporal injury to a spouse, cohabitant or child, a misdemeanor.
Judge Chin ended up finding probable cause for holding Little to answer for the felony charge of attempted murder with the special allegation of discharging a firearm, causing great bodily injury. The judge dismissed a second felony charge of assault with a semi-automatic weapon, finding insufficient evidence.
Little’s arraignment is set for March 22.