Though the trial court is accorded wide discretion in criminal contempt proceedings, State v. Our Chapel of Memories of New Mexico, Inc., its decisions are reviewable for arbitrariness and abuse of discretion. State v. Sanchez, 89 N.M. 673, 556 P.2d 359 (Ct.App. 1976). Abuse of discretion has been defined as a conclusion and judgment clearly against the logic of the facts before the court; a decision that is clearly untenable and clearly against reason and evidence.

We must first look at what New Mexico courts have previously done. The Court of Appeals upheld the sentence of 180 days of a contemner in State v. Sanchez, 89 N.M. 673, 556 P.2d 359 (Ct. App. 1976). The contemner refused to testify in a first degree murder trial and the defendant was subsequently convicted of manslaughter.

A trial court can obviously use its contempt powers to compel testimony wrongfully withheld. State v. Boeglin, 100 N.M. 470, 672 P.2d 643 (1983); State v. Sanchez, 89 N.M. 673, 556 P.2d 359 (Ct.App. 1976). Moreover, a mistrial is not mandated when the trial court finds it necessary to exercise its contempt powers in the presence of the jury.

See United States v. Gates, 176 F.2d 78 (2nd Cir. 1949). See also State v. Sanchez, 89 N.M. 673, 556 P.2d 359 (Ct.App. 1976). In the present case, the trial court was dealing with a willful and contemptuous witness who was attempting to frustrate this very process.

Roybal v. Martinez, 92 N.M. 630, 593 P.2d 71 (Ct.App. 1979). Generally, before criminal contempt may be imposed and enforced, the following requirements must be met: (1) Except in cases of flagrant contemptuous conduct, the trial judge should not exercise the power of summary contempt in the absence of a prior warning, see Caldwell v. United States, 28 F.2d 684 (9th Cir. 1928); Sussman v. Com., ___ Mass. ___, 374 N.E.2d 1195 (1978); State v. Sanchez, 89 N.M. 673, 556 P.2d 359 (Ct.App. 1976); (2) an opportunity to explain, Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974); and (3) a hearing on the matter, Taylor v. Hayes, supra. In the instant case, the statements by the court were not clear enough to constitute a specific warning to appellant.

Where defendants have failed to comply with Rules 12-208 and -213, or to indicate that the issue sought to be argued on appeal is jurisdictional, or that the issue was properly preserved for appellate review, an appellate court may decline to address such contention on appeal.See State v. Martin, 90 N.M. 524, 565 P.2d 1041 (Ct.App. 1977); State v. Sanchez, 89 N.M. 673, 556 P.2d 359 (Ct.App. 1976). Matters not specifically called to the trial court's attention, unless jurisdictional, will not be considered for the first time on appeal.

If the imprisonment extended beyond that time, the contempt would no longer be civil, since the witnesses no longer would have the opportunity to purge the contempt by agreeing to testify. Id. See also State v. Sanchez, 89 N.M. 673, 556 P.2d 359 (Ct.App. 1976) (contempt was criminal when witness in criminal trial was sentenced to fixed prison term for refusing to answer questions; contempt order gave witness opportunity to purge the contempt by answering the question before defendant rested her case). Turning to the case at hand, the contempt order may well have been intended to be remedial — to achieve the result sought by the Detention Center — rather than punitive.

Cherryhomes' refusal to answer the court's questions constituted criminal contempt. State v. Sanchez, 89 N.M. 673, 556 P.2d 359 (Ct.App. 1976). Cherryhomes, having refused to answer in the presence of the court, committed direct contempt.

Pamp. 1980 Cum. Supp. 1984), could amount to a violation of due process. See State v. Sanchez, 89 N.M. 673, 556 P.2d 359 (Ct.App. 1976); cf. State v. Bing, 272 S.C. 544, 253 S.E.2d 101 (1979), where there was no notice of a specific sentence and the warning "that he would be punished for contempt" was sufficient. Id., 253 S.E.2d at 102.

He disregards cases involving a refusal to answer after the trial court instructed the witness that the witness was required to answer. In State v. Sanchez, 89 N.M. 673, 678, 556 P.2d 359 (Ct.App. 1976), we cited United States v. Wilson, 421 U.S. 309, 95 S.Ct. 1802, 44 L.Ed.2d 186 (1975), in support of our statement "that a refusal to answer questions in the presence of the court is a proper matter to be dealt with summarily[.]" United States v. Wilson states: