concurring in part, and in part dissenting.
I agree with and concur in that portion of the majority opinion which holds that Dixon’s convictions for attempted first degree murder and the related count of use of a deadly weapon to commit a felony should be reversed and the cause remanded for a new trial on those counts because the trial court erred in not instructing on the offense of attempted second degree murder. I also concur in the affirmance of Dixon’s conviction of attempted theft by unlawful taking of property with a value in excess of $1,500. However, I respectfully dissent from that portion of the majority opinion under the subheading “Provision of Audiotape Player to Jury.” I do so for two reasons.
First, I do not regard the issue as properly before us under accepted principles of appellate review. We generally adhere to the rule that an appellate court is not obligated to engage in an analysis which is not needed to adjudicate the case and controversy before it. In re Interest of Battiato, ante p. 829, 613 N.W.2d 12 (2000); Springer v. Bohling, ante p. 71, 607 N.W.2d 836 (2000). I acknowledge our discretionary power to depart from this rule in order to resolve issues which are unnecessary to the disposition of an appeal but are likely to recur during further proceedings. See Snyder v. Contemporary Obstetrics & Gyn., 258 Neb. 643, 605 N.W.2d 782 (2000). However, I disagree with the majority’s invocation of this power as the basis for discussing the issue of when an audiotape player may be provided to a jury for the purpose of listening to tape-recorded evidence. This issue cannot recur on retrial of this case unless the *990State offers sufficient foundation to establish the admissibility of the tape recordings. The issue of foundational sufficiency for this evidence in the first trial was assigned as error in this appeal but not discussed in the majority opinion. If it is unnecessary to reach the issue of whether the tapes are admissible, I cannot discern a reason for addressing the question of how they should be published to the jury. Even if we assume that on retrial the State will offer the tapes and that the district court will correctly determine that foundation is sufficient to establish admissibility, it is entirely speculative as to whether the jury on retrial will request playback equipment for the purpose of listening to the tape recordings during its deliberations. Thus, it seems to me that this cannot be accurately characterized as an issue likely to recur during further proceedings and that reaching it in this appeal amounts to issuing an advisory opinion, which is not our proper function. See US Ecology v. State, 258 Neb. 10, 601 N.W.2d 775 (1999).
Second, assuming for the sake of argument that the issue is properly before us, I disagree with its resolution on the merits. The majority cites Chambers v. State, 726 P.2d 1269, 1275 (Wyo. 1986), for the “traditional common law rule” that a trial court has “no discretion to submit depositions and other testimonial materials to the jury room for unsupervised review, even if properly admitted into evidence at trial.” However, the Chambers court also noted that a trial court “has broad discretion in deciding whether to submit non-testimonial exhibits, such as non-testimonial writings, audiotapes, or videotapes, to the jury during its deliberations.” (Emphasis in original.) Id. Although the majority apparently regards the tape-recorded conversations between Dixon and Vasa as testimonial in nature, I do not. To “testify” is “[t]o give evidence as a witness.” Black’s Law Dictionary 1485 (7th ed. 1999). Dixon certainly was not giving evidence as a witness during his taped telephone conversation with Vasa. Rather, he was engaging in what he probably believed to be a private conversation with a person who, unbeknown to him, had admitted his own involvement in the crimes for which Dixon was eventually charged and was cooperating with law enforcement authorities. Dixon’s statements to Vasa were certainly incriminating, but they were not testimonial in nature.
*991The majority cites State v. Jacob, 253 Neb. 950, 574 N.W.2d 117 (1998), in support of its statement that “previously played portions of tape recordings, like testimony of an actual witness at trial, generally should not be reheard by jurors.” In that case, the tape recording at issue was a taped statement given by a crime scene witness to police which the defendant had introduced and played in order to impeach the witness during his trial testimony. In State v. Halsey, 232 Neb. 658, 441 N.W.2d 877 (1989), also relied upon by the majority, we held that the trial court did not err in refusing to allow the jury to listen to tape-recorded testimony of certain trial witnesses during its deliberations because of the danger that undue emphasis would be placed upon that part of the evidence if reheard. Both Jacob and Halsey involved tape recordings of testimony, or matters utilized during testimony, of nonparty witnesses. I do not read these cases as supporting a proposition that a jury generally should not be permitted to rehear a properly admitted tape recording of nontestimonial incriminating statements made by a defendant in a criminal proceeding.
Assuming their admissibility, Dixon’s tape-recorded statements to Vasa were not testimonial in nature, but, rather, constituted substantive evidence of his guilt, much like a tape recording of a crime in progress. Most jurisdictions permit trial judges broad discretion in allowing the jury to have unlimited access to evidence of this nature after it has been properly received. See, e.g., U.S. v. Puerta Restrepo, 814 F.2d 1236 (7th Cir. 1987) (finding no error in permitting jury to have transcripts of tape-recorded conversations in which defendant made incriminating statements to police informant); State v. Castellanos, 132 Wash. 2d 94, 935 P.2d 1353 (1997) (finding no error in allowing jury unlimited access to audiotapes of a drug buy and a playback machine during deliberations); Pino v. State, 849 P.2d 716 (Wyo. 1993) (finding no error in allowing jury to have tape recording of drug transaction and playback machine during deliberations); State v. Halvorson, 346 N.W.2d 704 (N.D. 1984) (holding tape recordings of conversations between defendant, his mother, and law enforcement officers were properly received in evidence and submitted to jury with playback equipment); State v. Barbo, 339 N.W.2d 905 (Minn. 1983) (finding trial court *992did not err in permitting jury to have tapes and typewritten transcript of conversation between defendant and person cooperating with police during which defendant made incriminating statements).
If the tape recordings of Dixon’s telephone conversations with Vasa were properly received in evidence, an issue which neither the majority nor I decide, I would hold that the trial court had broad discretion in deciding whether to submit the tapes and playback equipment to the jury for unrestricted review during its deliberations, and I would conclude that it did not abuse its discretion in doing so.