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STATE OF MINNESOTA IN COURT OF APPEALS A11-292 State of Minnesota, Respondent, vs. Tierre Davon Caldwell, Appellant. Filed April 16, 2012 Affirmed in part, reversed in part, and remanded Ross, Judge Hennepin County District Court File No. 27-CR-09-34971 Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, Minneapolis, Minnesota (for respondent) Bradford S. Delapena, St. Paul, Minnesota (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Ross, Judge; and Toussaint, Judge. SYLLABUS The district court does not abuse its discretion by prohibiting defense counsel in a criminal trial from commenting on the state's failure to elicit an in-court identification of the defendant from a witness who previously identified the defendant.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI,

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