The length of the delay in bringing the defendant to trial was not inherently prejudicial, but it does require inquiry into and a weighing of the reasons for the delay, the defendant's assertion of his right to a speedy trial, and the extent of any actual prejudice to the defendant which may have resulted from the delay. Commonwealth v. Beckett, 373 Mass. 329, 331 (1977). Contrast Commonwealth v. Green, 353 Mass. 687 (1968).

Rather, the jury must first make their own independent determination, again based on admissible evidence other than the statements themselves, on “the same questions” that the judge must pass on. Commonwealth v. Borans, 379 Mass. 117, 145 n. 26, 393 N.E.2d 911 (1979), quoting Commonwealth v. Beckett, 373 Mass. 329, 337 n. 3, 366 N.E.2d 1252 (1977). Out-of-court statements may generally be admitted provisionally, subject to a motion to strike should the evidence presented through the course of the Commonwealth's case fail to establish the existence of a joint venture.

The four-year delay prior to the commencement of trial on September 15, 1980, while not dispositive by itself, is unquestionably sufficient to require further inquiry whether the defendant was denied a speedy trial in violation of his constitutional right. See Commonwealth v. Horne, 362 Mass. 738, 743 (1973) (forty-eight month delay); Commonwealth v. Gilbert, 366 Mass. 18, 21 (1974) (thirty-one month delay); Commonwealth v. Boyd, 367 Mass. 169, 179-180 (1975) (fourteen month delay); Commonwealth v. Beckett, 373 Mass. 329, 331 (1977) (fifty-five month delay); Commonwealth v. Look, 379 Mass. 893, 898, cert. denied, 449 U.S. 827 (1980) (fifty-two month delay). We think "[t]he length of the delay here is clearly to be weighed against the Commonwealth, absent an adequate explanation for that delay."

Indeed, the Commonwealth may submit a case wholly on circumstantial evidence, and inferences drawn from that evidence “need only be reasonable and possible; [they] need not be necessary or inescapable.” Commonwealth v. Merola, 405 Mass. 529, 533, 542 N.E.2d 249 (1989), quoting Commonwealth v. Beckett, 373 Mass. 329, 341, 366 N.E.2d 1252 (1977). Where conflicting inferences are possible from the evidence, “it is for the jury to determine where the truth lies.”

Barker v. Wingo, 407 U.S. 514, 530 (1972), identifies four factors to be assessed in determining whether a defendant has been denied his right to a speedy trial: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." See also Commonwealth v. Beckett, 373 Mass. 329, 332 (1977); Commonwealth v. Dabrieo, 370 Mass. 728, 735-739 (1976); Commonwealth v. Boyd, 367 Mass. 169, 179-181 (1975). The "difficult and sensitive balancing process" involved in such determination "allows the trial court to exercise a judicial discretion based on the circumstances, including due consideration of any applicable formal procedural rule."

Spaulding, 411 Mass. at 507, 583 N.E.2d 1257. See Commonwealth v. Beckett, 373 Mass. 329, 332, 366 N.E.2d 1252 (1977) ( "[C]ourt congestion is not the responsibility of the defendant and must be weighed against the Commonwealth in assessing the reasons for the delay. But the weight to be given to such a cause for delay is not so heavy as a deliberate prosecutorial attempt to delay a trial"); Commonwealth v. Conefrey, 410 Mass. 1, 4-5, 570 N.E.2d 1384 (1991) ("As a general proposition, court congestion by itself will not constitute an adequate justification for the denial of the right to a speedy trial.... However, reasons of court congestion may be adequate to excuse delay when ... a defendant has agreed to a continuance based on congestion, rendering him at least partially responsible for the delay").

Barker, 407 U.S. at 532, 92 S.Ct. 2182. But nothing in the record before us suggests that the delay in bringing the defendant to trial precluded him from advancing his best defense or otherwise prejudiced his defense. See Commonwealth v. Beckett, 373 Mass. 329, 334, 366 N.E.2d 1252 (1977) ("There was no claim that any witness was unavailable, nor any proof that any witness, potentially helpful to the defendant, had forgotten significant facts"). The defendant claimed that the allegations against him and the delay in bringing him to trial "forced" him to move out of his home and to move to Arizona, led to his resignation from his job, contributed to his severe panic attacks and heart catheterization, and resulted in his receipt of "angry and taunting" messages from family and friends.

Given this belated assertion of the right, combined with his extensive earlier use of aliases and his refusal in 1994 to acknowledge his identity to Boston police, this factor weighs heavily against the defendant. See Barker, supra at 536, 92 S.Ct. 2182 (“barring extraordinary circumstances, we would be reluctant indeed to rule that a defendant was denied this constitutional right on a record that strongly indicates ... that the defendant did not want a speedy trial”); Commonwealth v. Beckett, 373 Mass. 329, 333, 335, 366 N.E.2d 1252 (1977) (no violation of right to speedy trial where no prejudice and “defendant has failed to show a diligent, or even casual, attempt to obtain a speedy trial”). D. Prejudice to defendant by delay.

The inferences drawn from circumstantial evidence "need only be reasonable and possible[, not] necessary or inescapable." Commonwealth v. Merola, supra, quoting Commonwealth v. Beckett, 373 Mass. 329, 341 (1977). The Commonwealth also does not have to prove that no person other than the defendant could have committed the crime.

"[I]t is clear that the jury must be instructed that, before they may consider the statements of one coconspirator against another, they must make definite findings on the same questions which the judge must pass on before he may permit the jury to consider whether that evidence may be used against all." Commonwealth v. Beckett, 373 Mass. 329, 340 (1977). The judge instructed the jury that before they could consider William McNeil's hearsay statements against the defendant, the Commonwealth had to prove beyond a reasonable doubt from other evidence that there was a conspiracy between the speaker (William McNeil) and the defendant, emphasizing that "of course, you're going to look at the cases against the individual defendants separately."