dissenting.
Prior to trial, Ford filed a motion asking the trial court “to restrict the Prosecution from using its peremptory challenges in a racially biased manner that would exclude members of the black race from serving on the jury.” This motion was denied by the trial court. Subsequently, the prosecutor exercised nine of his ten peremptory challenges against blacks.
On direct appeal, this court, like the trial court, ruled on the issue without having the benefit of the pronouncement of the United States Supreme Court in the since-decided case of Batson v. Kentucky, 476 U. S__(106 SC 1712, 90 LE2d 69) (1986). See Ford v. State, 255 Ga. 81 (1) (355 SE2d 567) (1985). Now, having held that Batson applies retroactively to cases, such as this one, that were tried prior to Batson but were still pending on direct appeal when Batson was decided, Griffith v. Kentucky, 479 U. S--(107 SC 708, 93 LE2d 649) (1987), the United States Supreme Court has remanded the case to us for reconsideration under Batson.
Today, the majority of this court holds that because Ford raised the discrimination issue before the jury selection began, it was not timely, or was not really a Batson-type objection at all.
While I agree that “nothing in Griffith would warrant the extension of relief upon grounds never raised at trial . . .” (majority at p. 662), I cannot agree that Ford never raised a Batson-type claim, nor do I think that we may avoid addressing the merits of a Batson issue that was raised at trial on the ground that it was raised too soon under a procedural rule of timeliness that we created after the case was tried.
I do not doubt that we may establish procedural rules regarding the correct time to raise Batson claims. But other than the general rule that issues cannot be raised for the first time after trial, no procedural rules governing the raising of Batson claims were in existence when Ford’s case was tried, for the very simple reason that Batson *665had not yet been decided.
Decided November 30, 1987 Reconsideration denied December 16, 1987. Harvey & Jarnigin, Nelson Jarnigin, for appellant. William G. Hamrick, Jr., District Attorney, Michael J. Bowers, Attorney General, Dennis R. Dunn, Assistant Attorney General, for appellee.We say now that the Batson claim should have been raised after the jury was selected. There is nothing wrong with this rule. However, Ford had no way of knowing but what if he had waited until after the jury was selected to raise the issue, we would have held that he waited too late; that he should have raised the issue prior to trial, so that the prosecutor would be on notice that his exercise of peremptory challenges would be scrutinized for racial discrimination.
Because the procedural rule on which the majority relies to avoid reaching the merits of Ford’s Batson claim did not exist when Ford’s case was tried, it cannot possibly be “the sort of firmly established and regularly followed state practice that can prevent implementation of [Ford’s] federal constitutional rights.” James v. Kentucky, 466 U. S. 341 (104 SC 1830, 80 LE2d 346) (1984). Moreover, such an “unannounced” and “novel application of a procedural bar of which [Ford] ‘could not fairly be deemed to have been apprised . . .’ [Cit.]” will not bar “federal habeas review of this claim . . .” Mann v. Dugger, 817 F2d 1471 (11th Cir. 1987).
Prior to trial, Ford moved the trial court to restrict the prosecutor from exercising his peremptory challenges in a racially discriminatory manner. The trial court denied the motion. After the jury was selected, the prosecutor offered to explain his peremptory challenges. The trial court ruled that such a proffer would be unnecessary, notwithstanding that the prosecutor had exercised nine of his ten peremptory challenges against blacks.
Inasmuch as Batson had not been decided when this case was tried, the trial court’s rulings were understandable. Nonetheless, under Batson they were erroneous.
I dissent to the majority opinion. I would remand this case to the trial court to give the prosecutor an opportunity to rebut the prima facie case of discrimination under Batson.
I am authorized to state that Justice Hunt joins in this dissent.