(dissenting) — One of the reasons we ordered a reference hearing was to determine if Roy Patrick, a jailhouse informant to whom Benn allegedly confessed, was a State agent. I agree that was not established.
However, testimony from the reference hearing in relation to the State agent issue does show that the State’s actions, taken together, deprived Benn of his Sixth Amendment right to confront and cross-examine Patrick. The State withheld information from Benn’s attorneys prior to and during his trial that the State was under direct court order to produce. The State violated the trial court’s discovery order by failing to promptly provide a taped statement and documents received from Patrick regarding Benn’s case. The State also violated a direct court order to produce information specific to Patrick’s previous dealings with law enforcement officers.
Testimony from the reference hearing also shows the State failed to list Patrick as a State witness until the eve *942of trial and prevented Benn’s attorneys from interviewing Patrick until the day before trial by erroneously claiming Patrick was involved in a witness protection program. The State’s misconduct deprived Benn of his Sixth Amendment right to fully cross-examine Patrick. On this point, Benn’s personal restraint petition should be granted and the case remanded for a new trial.
Sixth Amendment Right To Cross-Examine
Benn argues his Sixth Amendment right to cross-examine Patrick was denied by the State’s actions described above. In his original appeal, Benn argued his right to cross-examine Patrick was violated when the State failed to disclose that a search warrant for narcotics was executed on Patrick’s motel room while Patrick waited to testify at Benn’s murder trial. On this issue, the majority in Benn’s original appeal held the State’s failure to disclose the search warrant did not unduly restrict Benn’s ability to cross-examine Patrick and, therefore, did not require reversal of Benn’s conviction. State v. Benn, 120 Wn.2d 631, 650-51, 845 P.2d 289 (1993).
In Benn’s original appeal, however, the State’s last minute listing of Patrick as a State witness, the State’s failure to timely turn over the information provided by Patrick to the State on January 20, 1989, and the State’s action in preventing the defense team from- interviewing Patrick by claiming Patrick was in a witness protection program were not addressed. The majority here frames the issue by stating:
The defendant specifically claims that the State’s failure to provide timely discovery, which interfered with defense counsel’s ability to conduct effective cross-examination, is per se prejudicial. . . . Although we do not condone these discovery violations, the record does not support the dissent’s conclusion that the defendant’s constitutional rights were violated.
Majority op. at 902-03. The majority overlooks the other evidence and testimony Benn relies on to support his argu*943ment. When fully examined, that evidence and testimony establish that Benn was denied his right to cross-examine Patrick.
The Sixth Amendment to the United States Constitution and Const, art. I, § 22 provide a defendant with the right to “confront and cross-examine adverse witnesses.” State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983). With regard to this right, we have stated, “its denial or significant diminution calls into question the ultimate ‘ “integrity of the fact-finding process” ’ and requires that the competing interest be closely examined.” State v. Boast, 87 Wn.2d 447, 453, 553 P.2d 1322 (1976) (quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973) (quoting Berger v. California, 393 U.S. 314, 315, 89 S. Ct. 540, 21 L. Ed. 2d 508 (1969))). Whether a given defendant’s confrontation right has been denied is determined on a case-by-case basis after examining “all the circumstances and evidence.” Boast, 87 Wn.2d at 453 (citing United States v. Snow, 521 P.2d 730, 734 (9th Cir. 1975)).
The majority, however, conducts no analysis of the circumstances and evidence regarding Benn’s claim that he was denied an opportunity to effectively cross-examine Patrick by the State’s actions listed above. Instead, the majority dismisses Benn’s claim on the basis Patrick did not begin his testimony until five days after opening statements and concludes that because the record does not indicate any formal limitations were placed on defense counsels’ access to Patrick. Patrick’s last minute identification as a State witness did not deprive Benn of his right to effective assistance of counsel. Majority op. at 903-04 (citing United States v. Hall, 843 F.2d 408 (10th Cir. 1988); State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989)). I disagree.
Benn’s claim that he was denied the opportunity to effectively cross-examine Patrick is also grounded in the State’s failure to provide Benn’s counsel with information about Patrick that the State possessed. There can be no question the State has a duty to disclose this information even without a court order.
*944CrR 4.7 outlines discovery obligations during criminal trials. Under that rule, the State is obliged to disclose “no later than the omnibus hearing: the names and addresses of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial, together with any written or recorded statements and the substance of any oral statements of such witnesses.” CrR 4.7(a)(l)(i). We have held that one of the principles underlying CrR 4.7 is to “afford opportunity for effective cross-examination,” State v. Yates, 111 Wn.2d 793, 797, 765 P.2d 291 (1988) (quoting Criminal Rules Task Force, Washington Proposed Rules of Criminal Procedure 77 (West 1971)). The State can make no credible argument that it compliéd with or attempted to comply with CrR 4.7. Because the State failed to comply with CrR 4.7, Benn’s counsel was prevented from obtaining information about Patrick that they could have used to impeach Patrick’s credibility. Thus, Benn’s counsel was not afforded the opportunity for effective cross-examination as is contemplated by CrR 4.7 and Yates.
In addition to the State’s duty imposed by CrR 4.7, on December 16, 1988, the trial court ordered the State to produce all “statements made by Defendant to . . . third parties . . .,” the “names and addresses of Plaintiff’s witnesses and their statements . . .,” to “[pjermit inspection and copying of any . . . documents . . . which the prosecution (a) [o]btained from or belonging to the Defendant, or (b) [w]hich will be used at the hearing or trial,” to provide statements made by witnesses to the police, to “[s]upply the defense with copies of all tape recorded statements taken by the police . . .,” and to “[p]rovide the defense with any and all measurements or diagrams made of the crime scene.” Clerk’s Papers at 33-34 (State v. Benn, 120 Wn.2d 631). On January 20, 1989, Patrick gave a taped statement in which he related numerous incriminating statements made by Benn to him when they shared a cell in the Pierce County Jail. Patrick also provided the State with various documents he obtained from Benn that were specifically related to the murder charges against Benn. Benn’s first defense counsel, Raymond Thoenig, declared *945that he did not “become aware of Roy Patrick or his testimony until close to the time of trial.” Personal Restraint Pet. app. 16 at 2 (Decl. of Raymond Thoenig). The final trial date was March 14, 1990, over one year after Patrick provided the incriminating information to the State.
The reference hearing testimony reveals the State did not promptly provide the above information, or Patrick’s existence as a State witness, to Benn even though CrR 4.7 and the trial court’s December 16, 1988 order required disclosure. Because Patrick was not on the State’s witness list, Benn’s counsel had no need to investigate for more specific information on Patrick until the State finally disclosed its intent to call Patrick as a witness less than 24 hours prior to trial. In failing to timely provide this information and list Patrick as a State witness, the State violated CrR 4.7 and the trial court’s order.
Benn’s counsel first interviewed Roy Patrick on March 13, 1990, the day before trial began. At that interview, Benn’s counsel first learned of Patrick’s history as a paid informant. On the first day of trial, Benn’s counsel moved for and the trial court ordered the State to disclose:
[F]or the year prior to the date of the alleged crime and up until now, . . . any written material that you’re able to procure from the various law enforcement officers with whom the confidential informant [Patrick] may have had contacts.
Report of Proceedings, vol. I at 58 (State v. Benn, 120 Wn.2d 631). The State claimed it would not be able to obtain that information until a Detective Lewis returned from out of town the next Monday. The trial court then set a deadline for the Wednesday after Detective Lewis returned.
Testimony at the reference hearing reveals the State made no attempt to comply with the trial court order. Detective Lewis testified he was never contacted by the Prosecutor’s office for information or records on Patrick:
Q: Were you aware of Gary Benn’s trial in 1990?
*946A: I recall reading something about it in the paper, but I don’t know details, and I wasn’t familiar with the case at all.
Q: Were you ever approached by Pierce County prosecutor’s [sic] for information about. . . Patrick at that time?
A: No.
Q: Did anyone [sic] of them [prosecutors] approach you and ask you for information about Roy Patrick at the time?
A: No.
Q: Did anyone ask you to dig up as many records as you could about Roy Patrick at that time?
A: No.
Q: This was in 1990. Back then, would your own personal files concerning Roy Patrick have been in existence? In 1990?
A: Yes.
Personal Restraint Pet. Hr’g, vol. I at 145-46.
At the reference hearing Benn’s counsel testified the State responded to his “repeated requests for an interview” with Patrick by stating Patrick was “unavailable” for an interview because he was in a witness protection program. Id., vol. VIII at 1428. However, when asked whether he was in a witness protection program, Patrick was equivocal, stating, “No. Yes and no. I don’t know really know. I was told I was, but I wasn’t.” Id., vol. V at 930. More importantly, at the reference hearing the State conceded Patrick was not in a witness protection program. Id., vol. VIII at 1477. This testimony supports Benn’s argument that the State’s actions deprived him of his ability to prepare for trial and, thus, an opportunity to fully cross-examine Patrick.
Nothing in the record indicates that Benn’s defense counsel could have taken further action. The significance of *947Patrick’s testimony cannot be overstated. Patrick testified as to Benn’s confession and as to diagrams made by Benn regarding the murders. His testimony provided crucial evidence for the State. This court ordered a reference hearing because of its concern over the State’s actions with regard to Roy Patrick. The testimony from the reference hearing shows the court’s concern was warranted. As such, Benn’s personal restraint petition should be granted. He was denied the opportunity to fully examine a consequential State witness.
Sanders, J., concurs with Johnson, J.
Reconsideration denied April 22, 1998.