Opinion of the Court
Darden, Judge:
In this case the Judge Advocate General of the Army has certified the question of whether the Court of Military Review was correct in holding that the military judge’s failure to instruct on the voluntariness of the accused’s out-of-court statement was prejudicially erroneous. Our decision turns on whether the defense counsel expressly waived the right of the accused to an instruction that the court must disregard the accused’s out-of-court statement unless it determined beyond a reasonable doubt that the statement was voluntary.
On August 5, 1969, the appellee and the deceased, Private Michael J. Ryan, engaged in several fights, at least some of which were precipitated by the deceased. After the deceased won the last fight, he referred to a knife lying on the floor and said the appellee was lucky he kicked the knife from the deceased’s hand. The appellee then borrowed a .22 caliber pistol from a Specialist Five Ferguson. The pistol was located in an automobile owned by a Specialist Five Elm that was then in the barracks parking lot. While in the parking lot to obtain the pistol, Meade testified he had Ferguson place two rounds of ammunition in the pistol’s cylinder in such a position that the pistol would not fire until after the trigger had been pulled three or four times. The appellee stated to Specialist Ferguson that he did not intend to kill the deceased. When the appellee again met the deceased in the barracks, the latter said, “Let’s do that again, it was fun.” The ap-pellee drew his pistol and pointed it at the deceased, who dared the ap-pellee to shoot him. The appellee pulled the trigger several times as the hammer fell on empty chambers. Finally the pistol fired, inflicting a wound from which the deceased died. Immediately before the pistol fired the deceased said, “now, I am going to kill you.” After the shooting the appellee walked from the barracks and later surrendered to military police.
A general court-martial convicted the appellee of unpremeditated murder and sentenced him to a dishonorable discharge, total forfeitures, confinement at hard labor for twenty years, and reduction to the lowest enlisted grade. After the convening authority approved, the Army Court of Military Review set aside the findings and sentence because of what it considered a deficiency in the military judge’s instructions to the court.
In a pretrial interrogation the ap-pellee gave a statement, the voluntariness of which was contested first in an Article 39(a), Uniform Code of Military Justice, 10 USC § 839, session. At this session the defense’s principal contention against volun-tariness was that when the appellee was informed he was suspected of murder and he inquired about the penalty for murder, he was indicating he desired counsel at that time. At the end of the Article 39(a) session, the judge ruled preliminarily that the statement was admissible and he stated:
“. . . [Tjhis is a preliminary ruling, the same matter may again be developed before the court and if an issue is presented by the testimony developed before the court, I will then submit it to the court under appropriate instructions.”
[512]*512At the trial, when the Government questioned Agent Frink, Criminal Investigations Detachment, in open court about the events of the night of the shooting, the defense objected to the admission of the statement that Mr. Frink had taken. The military judge overruled the objection. Soon afterward, this exchange occurred in an out-of-court hearing:
“MJ: . . . Now with regard to the confession issue, there was an objection stated to the confession, but no further testimony or evidence adduced on that. The defense understands, of course, the same issue that was litigated in the Out-of-Court Hearing, the Article 39a Session, can be litigated before the court.
“DC: Yes, sir.
“MJ: It is not the intention of the defense to litigate that issue?
“IC: Not at this time, no.
“MJ: That concludes the Out-of-Court Hearing.”
The trial and defense counsel later read to the court the deposition of Criminal Investigations Detachment Agent Anderson that contains specific references to the taking of the out-of-court statement.
As the last witness for the defense, individual defense counsel called the appellee to the stand. Although the appellee’s testimony covered more than sixty pages in the record, it concentrated on the events leading up to the shooting and the shooting itself. He made only brief references to the circumstances of the taking of his out-of-court statement at the Criminal Investigations Detachment office after the shooting.
After the appellee finished testifying the military judge called a sidebar conference in which the following exchange was recorded:
“MJ: If I recall the accused’s testimony correctly, he may have left the impression that after he had indicated that he wanted to see somebody who knew what this was all about at the time of the interview, there were further questions. Also his testimony, in his explanation as to what was told him, extended only to the fact that he had a right to a lawyer, that was not further developed. I’m asking at this time whether there is an issue for submission to the court or whether the defense is relying upon the ruling made in the Out-of-Court Hearing regarding the compliance with the Miranda, warning and the Article 31 warnings?
“DC: Just a moment.
“(DC and IC confer.)
“IC: We rely on the Out-of-Court Hearing and not to submit it to the court.
“MJ: Then there’s no issue now before the court on the statement?
“DC: The ruling’s been made as far as we’re concerned, that’s the only ruling we’re seeking.”
During their final argument, both the appointed defense counsel and the individual defense counsel stressed the evidence in support of their strategy of self-defense. Neither counsel mentioned the voluntariness of the confession.
As appellate defense counsel view this case, the question is whether one can affirmatively waive an instruction on voluntariness after taking at least some steps to litigate disputed factual issues, and, if such a waiver is possible, whether it was accomplished here. Despite the obvious choice of both civilian and military defense counsel that the judge not submit the voluntariness issue to the court for determination, appellate defense counsel insist that the military judge could not rely on the statements of counsel but was obligated to give vol-untariness instructions to the court, unless (1) the defense withdrew its objection made in open court to the admission of the confession and (2) the appellee recanted his testimony suggesting that the statement was taken from him in violation of his right to counsel.
[513]*513Even before Jackson v Denno, 378 US 368, 12 L Ed 2d 908, 84 S Ct 1774 (1964), military procedure called for the military judge to determine the admissibility of a contested statement as a matter of law and for the judge to instruct the members of the court that they must disregard the statement unless they found beyond a reasonable doubt that it was voluntary. Paragraph 140a, Manual for Courts-Martial, United States, 1951.
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Opinion of the Court
Darden, Judge:
In this case the Judge Advocate General of the Army has certified the question of whether the Court of Military Review was correct in holding that the military judge’s failure to instruct on the voluntariness of the accused’s out-of-court statement was prejudicially erroneous. Our decision turns on whether the defense counsel expressly waived the right of the accused to an instruction that the court must disregard the accused’s out-of-court statement unless it determined beyond a reasonable doubt that the statement was voluntary.
On August 5, 1969, the appellee and the deceased, Private Michael J. Ryan, engaged in several fights, at least some of which were precipitated by the deceased. After the deceased won the last fight, he referred to a knife lying on the floor and said the appellee was lucky he kicked the knife from the deceased’s hand. The appellee then borrowed a .22 caliber pistol from a Specialist Five Ferguson. The pistol was located in an automobile owned by a Specialist Five Elm that was then in the barracks parking lot. While in the parking lot to obtain the pistol, Meade testified he had Ferguson place two rounds of ammunition in the pistol’s cylinder in such a position that the pistol would not fire until after the trigger had been pulled three or four times. The appellee stated to Specialist Ferguson that he did not intend to kill the deceased. When the appellee again met the deceased in the barracks, the latter said, “Let’s do that again, it was fun.” The ap-pellee drew his pistol and pointed it at the deceased, who dared the ap-pellee to shoot him. The appellee pulled the trigger several times as the hammer fell on empty chambers. Finally the pistol fired, inflicting a wound from which the deceased died. Immediately before the pistol fired the deceased said, “now, I am going to kill you.” After the shooting the appellee walked from the barracks and later surrendered to military police.
A general court-martial convicted the appellee of unpremeditated murder and sentenced him to a dishonorable discharge, total forfeitures, confinement at hard labor for twenty years, and reduction to the lowest enlisted grade. After the convening authority approved, the Army Court of Military Review set aside the findings and sentence because of what it considered a deficiency in the military judge’s instructions to the court.
In a pretrial interrogation the ap-pellee gave a statement, the voluntariness of which was contested first in an Article 39(a), Uniform Code of Military Justice, 10 USC § 839, session. At this session the defense’s principal contention against volun-tariness was that when the appellee was informed he was suspected of murder and he inquired about the penalty for murder, he was indicating he desired counsel at that time. At the end of the Article 39(a) session, the judge ruled preliminarily that the statement was admissible and he stated:
“. . . [Tjhis is a preliminary ruling, the same matter may again be developed before the court and if an issue is presented by the testimony developed before the court, I will then submit it to the court under appropriate instructions.”
[512]*512At the trial, when the Government questioned Agent Frink, Criminal Investigations Detachment, in open court about the events of the night of the shooting, the defense objected to the admission of the statement that Mr. Frink had taken. The military judge overruled the objection. Soon afterward, this exchange occurred in an out-of-court hearing:
“MJ: . . . Now with regard to the confession issue, there was an objection stated to the confession, but no further testimony or evidence adduced on that. The defense understands, of course, the same issue that was litigated in the Out-of-Court Hearing, the Article 39a Session, can be litigated before the court.
“DC: Yes, sir.
“MJ: It is not the intention of the defense to litigate that issue?
“IC: Not at this time, no.
“MJ: That concludes the Out-of-Court Hearing.”
The trial and defense counsel later read to the court the deposition of Criminal Investigations Detachment Agent Anderson that contains specific references to the taking of the out-of-court statement.
As the last witness for the defense, individual defense counsel called the appellee to the stand. Although the appellee’s testimony covered more than sixty pages in the record, it concentrated on the events leading up to the shooting and the shooting itself. He made only brief references to the circumstances of the taking of his out-of-court statement at the Criminal Investigations Detachment office after the shooting.
After the appellee finished testifying the military judge called a sidebar conference in which the following exchange was recorded:
“MJ: If I recall the accused’s testimony correctly, he may have left the impression that after he had indicated that he wanted to see somebody who knew what this was all about at the time of the interview, there were further questions. Also his testimony, in his explanation as to what was told him, extended only to the fact that he had a right to a lawyer, that was not further developed. I’m asking at this time whether there is an issue for submission to the court or whether the defense is relying upon the ruling made in the Out-of-Court Hearing regarding the compliance with the Miranda, warning and the Article 31 warnings?
“DC: Just a moment.
“(DC and IC confer.)
“IC: We rely on the Out-of-Court Hearing and not to submit it to the court.
“MJ: Then there’s no issue now before the court on the statement?
“DC: The ruling’s been made as far as we’re concerned, that’s the only ruling we’re seeking.”
During their final argument, both the appointed defense counsel and the individual defense counsel stressed the evidence in support of their strategy of self-defense. Neither counsel mentioned the voluntariness of the confession.
As appellate defense counsel view this case, the question is whether one can affirmatively waive an instruction on voluntariness after taking at least some steps to litigate disputed factual issues, and, if such a waiver is possible, whether it was accomplished here. Despite the obvious choice of both civilian and military defense counsel that the judge not submit the voluntariness issue to the court for determination, appellate defense counsel insist that the military judge could not rely on the statements of counsel but was obligated to give vol-untariness instructions to the court, unless (1) the defense withdrew its objection made in open court to the admission of the confession and (2) the appellee recanted his testimony suggesting that the statement was taken from him in violation of his right to counsel.
[513]*513Even before Jackson v Denno, 378 US 368, 12 L Ed 2d 908, 84 S Ct 1774 (1964), military procedure called for the military judge to determine the admissibility of a contested statement as a matter of law and for the judge to instruct the members of the court that they must disregard the statement unless they found beyond a reasonable doubt that it was voluntary. Paragraph 140a, Manual for Courts-Martial, United States, 1951. When the voluntariness of a pretrial statement is in issue, the Government must establish voluntariness beyond a reasonable doubt, “and when that issue or one relating to denial of counsel is submitted to a military jury, it should be so informed.” United States v Odenweller, 13 USCMA 71, 75, 32 CMR 71 (1962). “[T]he question of the veracity of his claim [of denial of counsel] was one ultimately for the court members.” Id., at page 74.
When the voluntariness of a pretrial statement is in issue the responsibility for the judge to instruct on it is a sua sponte one that arises not from a defense request but from the existence of evidence raising the issue. United States v Howard, 18 USCMA 252, 39 CMR 252 (1969).
From the exchanges between the military judge and the civilian and military defense counsel quoted above, we are confident that in its trial strategy the defense counsel intentionally abandoned the voluntariness issue. This requires us to consider whether the voluntariness instruction could be waived without formally withdrawing the original objection in open court and without the appellee’s retracting the part of his testimony that could be considered as a challenge of the voluntariness of his out-of-court statement.
In arguing that such an instruction can be waived appellate Government counsel urge two considerations. The first is that the record must demonstrate “an affirmative, calculated, and designed course of action by a defense counsel” to the end that he led the presiding military judge to believe he did not wish the instruction to be given. United States v Mundy, 2 USCMA 500, 503, 9 CMR 130 (1953); United States v Moore, 12 USCMA 696, 700, 31 CMR 282 (1962). The second consideration is that even when defense counsel makes an on-the-record attempt to waive a sua sponte instruction, the military judge must decide for himself whether the court would be unduly deprived of necessary instructional guidelines. See United States v Wilson, 7 USCMA 713, 23 CMR 177 (1957).
Our adoption of the appellee’s arguments against waiver without certain retractions would unreasonably restrict defense counsel in his selection of strategy and, in the case under consideration, it could have prejudiced the accused. Here the available issues to the defense were (a) voluntariness and (b) self-defense. Trial defense counsel could reasonably have recognized that they had a frail issue of voluntariness and that without more evidence of involuntariness an instruction on this subject could have emphasized the frailty and have militated against the efficacy of a more promising self-defense issue. By withdrawing before the court his objection to the admission of the statement, and by retracting the part of appellee’s testimony suggesting his out-of-court statement was involuntary, the trial defense could have discredited themselves with the members of the court, making them less likely to decide the self-defense issue for the appellee.
In reversing the findings, the Court of Military Review emphasized that the responsibility of the military judge for a voluntariness instruction was his alone and that he should not allow defense counsel to decide whether an issue had been raised. Paragraph 140a(2), Manual for Courts-Martial, United States, 1969 (Revised edition). We agree, but the military judge’s words and actions here impress us as his recognition [514]*514that, without more evidence, defense had a weak issue of voluntariness and that this weakness could undercut the self-defense issue.
The Court of Military Review declined to affirm findings of guilt based on the evidence other than the out-of-court statement because of that court’s doubt about the impact of the exculpatory material in the statement if the military judge had instructed trial members on the voluntariness question. This concern seems to assume that the court members disregarded exculpatory parts of the statement because they were not instructed they could consider the statement only if they found beyond a reasonable doubt that it was voluntary. In our view, however, the court members hardly were more likely to give the appellee the benefit of the exculpatory material after they were informed they must disregard his statement unless they were satisfied of its volun-tariness beyond a reasonable doubt.
Since we are convinced that defense counsel waived the voluntariness instruction and that in the circumstances of this case the military judge properly acceded to the waiver, we answer the certified question in the negative. Accordingly, the decision of the Court of Military Review is reversed. The record of trial is returned to the Judge Advocate General of the Army for action not inconsistent with this opinion.
Chief Judge Quinn concurs.