(dissenting):
I disagree with the majority’s treatment of the alleged error of the failure of the military judge to instruct on the lesser included offense of assault with intent to commit voluntary manslaughter. Appellant was charged under specifications 3 and 7 of Charge II with “shooting” the named victims, and under specifications 5 and 6 with “shooting at” the named victims. He was found guilty as charged with respect to specifications 5, 6, and 7, but the court found that he merely shot at the named victim under specification 3. During an out-of-co^irt hearing concerned with proposed instructions, the following colloquy occurred between the military judge and defense counsel:
MJ: You will note that I have only given one lesser included offense, that of assault with a dangerous weapon, and of course there are listed within the lesser included offenses many other lesser included offenses of assault with intent to commit murder. It appeared to me that with the possible exception of the willful discharge of a firearm under circumstances such as to endanger life, that none of the other lesser included offenses would be applicable. Does either counsel wish to have that lesser included offense given as well?
IC: Defense counsel does.
MJ: You do? Very well, I will include that as another lesser included offense. What about any of the other lesser included offenses?
IC: I see no others.
Subsequently, the trial counsel requested an instruction on the lesser included offense of the actual infliction of grievous bodily harm with respect to specifications 3 and 7, and defense counsel offered no objection when the military judge denied the trial counsel’s request. Trial counsel then requested an instruction on simple assault and battery with respect to these two offenses and trial defense counsel commented that he felt the instruction was appropriate for only one of the offenses.
The primary issue at trial was self-defense. Standing alone, this does not preclude the assertion of circumstances which necessitate instructions on lesser included offenses. United States v. Clark, 22 U.S.C.M.A. 576, 48 C.M.R. 83 (1973). However, in my opinion, the conduct of the defense counsel during the hearing on proposed instructions, as manifested by his position with respect to trial counsel’s request for instructions on lesser included offenses, evidences a trial strategy and desire of defense inconsistent with instructions on the lesser included offense of assault with intent to commit voluntary manslaughter. While the military judge bears the primary responsibility for instructing on the issues raised at trial (see United States v. Graves, 1 M.J. 50 (1975)), he does not commit reversible error by yielding to the defense. See my dissent in United States v. Grunden, 2 M.J. 116, 124 (C.M.A.1977). Accordingly, I would affirm the decision of the Court of Military Review.